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Cancer Treatment Informed Consent Claim Time Barred


A patient was diagnosed with prostate cancer. Due to concerns about prostate removal surgery and its lengthy recovery period, the patient chose to undergo robotic radiosurgery. The radiation oncologist used a radiation therapy system that was promoted as limiting radiation exposure to surrounding healthy tissue. The patient underwent five treatments with the radiation therapy system. During one or two treatments, the patient reported experiencing genital pain and a burning sensation in the lower abdomen.

 

Approximately eight months after the last treatment, the patient contacted the primary care physician about passing blood from the rectum. The patient was referred to a gastroenterologist. Approximately 10 months after the last treatment, the gastroenterologist performed a colonoscopy and cauterized damage to the patient’s rectum. At that time, the patient assumed that the damage was caused by the radiation therapy system treatment.

 

About one year and eleven months after the last treatment, a urologist informed the patient that, due to having the radiation therapy system treatments, there were few to no options that were not high risk to address the recurring prostate symptoms. Testing revealed that the patient still had prostate cancer. The patient underwent a radical salvage prostatectomy.

 

Approximately 14 months after testing revealed that the patient still had prostate cancer, the patient filed a medical malpractice action against the radiation oncologist, the hospital where the treatment took place, and the developer of the radiation therapy system used to treat the patient. The complaint alleged that the radiation oncologist, hospital, and developer failed to disclose that the treatment posed a risk of radiation damage to surrounding tissue and organs and misrepresented the safety of the treatment, such that the patient would not have agreed to undergo the treatment knowing of the risks.

 

The radiation oncologist, hospital, and developer moved for summary judgment. The Circuit Court for Hamilton County granted summary judgment on all of the claims. The trial court granted the radiation oncologist’s motion for summary judgment on the ground that the patient lacked the necessary expert proof regarding the standard of care because the patient’s expert did not know the specific risks of the radiation therapy system used to treat the patient. The trial court granted the hospital’s motion for summary judgment on the ground that, as a hospital, it had no duty to obtain informed consent from the patient for the radiation therapy system treatment performed by the radiation oncologist. The trial court granted the developer’s motion for summary judgment on the ground that the one-year statute of limitations for a product liability claim based on failure to warn had run by the date the complaint was filed.

 

The Court of Appeals of Tennessee affirmed on other grounds. The court held that the patient’s claims against the radiation oncologist, hospital, and developer were barred by the statute of limitations.

 

The patient’s claims against the radiation oncologist, hospital, and developer were barred by the statute of limitations. The court reasoned that the discovery rule did not delay the accrual of the cause of action and the commencement of the statute of limitations until the patient knew the full extent of the damages. The discovery rule delayed the accrual of the cause of action and the commencement of the statute of limitations until the patient knew that, due to the radiation therapy system treatments, the future treatment options were limited. The court concluded that the patient’s causes of action accrued, at the very latest, on the date the urologist informed the patient that, due to having the radiation therapy system treatments, there were few to no options that were not high risk. Counsel for the patient sent pre-suit notice to the radiation oncologist and hospital more than one year after the latest possible date the patient’s cause of action accrued. The complaint against the developer was filed more than one year after the latest possible date the patient’s cause of action accrued. Accordingly, the court concluded that all of the claims were time-barred and the radiation oncologist, hospital, and developer were entitled to summary judgment on that basis.

 

The Court of Appeals of Tennessee affirmed, on other grounds, the trial court’s grant of summary judgment in favor of the radiation oncologist, hospital, and developer.

 

See: Dondero v. Accuray, Inc., 2018 WL 3600014 (Tenn.Ct.App., July 26, 2018) (not designated for publication).

 

See also Medical Law Perspectives Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis 

 

See also Medical Law Perspectives Report: Chemotherapy: Risks and Liabilities When the Treatment Is Toxic

 

See also Medical Law Perspectives Report: Using Medical Devices Off-Label: False Claims, Overpromotion, Malpractice, and Other Dangerous Territory 

 

See the Medical Law Perspectives Blog: Failure to Diagnose Cancer Claims Face Hurdles, Especially in New York

 

 

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