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Discovery Rule Applied Even Though Doctor’s Name in Medical Records


A man presented to the emergency room complaining of pain in his lower back and leg weakness. Rather than consulting the orthopedist on call, the ER doctor decided to consult the orthopedic surgeon with whom the man had an appointment scheduled for a few days later for the same problem. A neurosurgeon was covering the orthopedic surgeon’s calls. The ER doctor spoke with the neurosurgeon and made a note that the neurosurgeon would come to the ER to see the man. The neurosurgeon did not appear at the ER, and he maintained that he never agreed to do so because he was out of town. The ER doctor made two notes about consulting with the neurosurgeon and ordered an MRI for the man under the neurosurgeon’s name.

 

The MRI showed an epidural abscess. The radiologist contacted the neurosurgeon with the results. The neurosurgeon said that, when he was told about the epidural abscess, he recommended that the man be transferred to a university medical center and then had no further involvement with his treatment. The ER doctor on duty at the time the MRI results came back contacted the neurosurgeon on call for the ER, who admitted the man to the hospital. A third neurosurgeon performed surgery on the epidural abscess nine hours and fifteen minutes after the MRI was performed.

 

The man and his wife sued the various people and entities involved with his care, except for the neurosurgeon who was covering his orthopedic surgeon’s calls. The neurosurgeon’s fervent denial of his participation in the events giving rise to the alleged injury led the couple and their attorney to conclude that no basis for a claim against him existed. The complaint alleged that the surgery should have been done sooner and that the delay in treatment resulted in neurological injury to the man.

 

During discovery the neurosurgeon who was covering the orthopedic surgeon’s calls was deposed. He testified that he was out of town while the man was in the ER. He received two calls from the ER doctor. He understood that the ER doctor was calling because there was no neurosurgeon on call for the emergency room at the time and said that he had informed the ER doctor that he was not on call. He denied having said that he would come to see the patient. With regard to the first call, he testified that the ER doctor called to get guidance as to how to handle a patient like this and he told the ER doctor that this was a patient that needed an emergency MRI, needed additional workup to try to determine a diagnosis, and was not something that could just be treated expectantly. Regarding the second call, the ER doctor told him that the patient's MRI scan demonstrated an epidural abscess and the neurosurgeon recommended that the man be transferred to the university medical center.

 

The ER doctor testified during his deposition that the neurosurgeon was on call. The neurosurgeon indicated that he was going to come and care for the man and that he wanted the ER doctor to give the man some pain relief, get the MRI, and have him called back with the results. The ER doctor testified that the neurosurgeon never mentioned that the man ought to be transferred to the university medical center.

 

After the ER doctor’s deposition, the couple amended their complaint to add the neurosurgeon who was covering for the man’s orthopedic surgeon’s calls as a defendant.

 

The neurosurgeon filed a motion for summary judgment on the ground that the statute of limitations had expired. Specifically, the neurosurgeon argued that, because his name appeared on various pages of the man's medical records and because the couple knew his identity, the discovery rule did not operate to toll the statute of limitations on their claims against him. The Hinds County Circuit Court denied the neurosurgeon’s summary judgment motion, holding that the discovery rule applied, so the statute of limitations had not run or, in the alternative, that the claim was proper under Rule 15 of the Mississippi Rules of Civil Procedure to conform the pleadings to the evidence.

 

The Supreme Court of Mississippi affirmed. The court held that genuine issues of material fact existed as to whether the discovery rule operated to toll the two-year statute of limitations, even though the neurosurgeon's name appeared on the man’s medical records.

 

Genuine issues of material fact existed as to whether the discovery rule operated to toll the two-year statute of limitations, even though the neurosurgeon's name appeared on the man's medical records. Whether the discovery rule tolled the statute of limitations required a determination by the trier of fact regarding the date the alleged act, omission, or neglect must be or with reasonable diligence might have been first discovered. The couple purportedly became aware that the neurosurgeon's involvement in treatment may have been far greater than he initially had related to them only when the ER doctor was deposed. The deposition of the ER doctor created a genuine issue of material fact regarding the point at which the couple had notice of potential claims against the neurosurgeon. The court noted that the couple and their attorney investigated diligently, going to the extraordinary length of having their pre-suit medical consultant actually conduct an investigation after which he concluded that, based on the neurosurgeon's representations, no viable medical negligence claims against the neurosurgeon were present. It remained a question for the jury whether the couple had reason to know, based solely on the appearance of the neurosurgeon's name in the man's medical records, of potential medical negligence claims against the neurosurgeon or whether those claims remained concealed until the ER doctor was deposed. The court concluded that the trial court properly denied summary judgment to the neurosurgeon.

 

The Supreme Court of Mississippi affirmed the trial court’s denial of the neurosurgeon’s motion for summary judgment.

 

See: Holaday v. Moore, 2015 WL 1955574 (Miss., April 30, 2015) (not designated for publication).

 

See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care 

 

 

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