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Failure to Diagnose Melanoma Claim Barred by Statute of Limitations


A man presented to a physician’s assistant (PA) with a lesion on his left heel. The PA diagnosed the lesion as an infected wart, prescribed antibiotic ointment, and instructed the man to return for a follow-up appointment, scheduled for two weeks later. The man did not attend the follow-up appointment.

 

The man returned to see the PA approximately three and a half months later because the lesion had not improved. Still believing the lesion was an infected wart, the PA froze it off during that appointment. The PA again instructed the man to return for a follow-up appointment, scheduled for the following month. The man did not attend the follow-up appointment. The man never returned to see the PA.

 

The man’s lesion did not improve. He visited a dermatologist approximately four months after the PA froze off the lesion. The dermatologist performed a shave biopsy of the lesion during that appointment. The biopsy revealed the lesion was a malignant melanoma tumor, not an infected wart. When an oncologist reviewed the biopsy, he diagnosed the man with Stage IIIC malignant melanoma, meaning the cancer had metastasized to his lymphatic system, but had not spread beyond the original area of skin and nearby lymph nodes.

 

Nearly two years after the date of the biopsy, the man filed a pre-litigation screening application with the Idaho State Board of Medicine. Shortly thereafter, the man filed a complaint alleging medical malpractice claims against the PA, her supervisor, and her employer. The complaint alleged that the PA negligently failed to perform a biopsy that would have revealed cancer and that the supervisor had failed to supervise the PA.

 

The PA, the supervisor, and the employer filed a motion for summary judgment. The motion argued that Idaho Code section 5-219(4)’s two-year statute of limitations barred the claims. In support of the motion, the PA, the supervisor, and the employer submitted an affidavit from a dermatologist and dermatopathologist. The dermatologist and dermatopathologist testified that the man’s cancer was objectively ascertainable on or before the date of his first appointment with the PA. Specifically, the dermatologist and dermatopathologist stated that “[t]o a reasonable degree of medical certainty [the man]’s cancer was objectively ascertainable and capable of being diagnosed when it first became symptomatic for the patient.” He explained that had a biopsy been performed when the man first presented to the PA, the biopsy would have revealed cancer. He based that opinion on his review of the type and amount of disease that the biopsy discovered and the subsequent excision of the melanoma. The dermatologist and dermatopathologist explained that it took time for a melanoma to form, grow to that depth, and develop to reach the degree of cancer that the man suffered.

 

The man responded to the motion by relying on the deposition testimony of his oncologist. The oncologist testified that without a biopsy there could be no diagnosis of the man’s cancer. When asked whether the man’s cancer was objectively ascertainable when he visited the PA, the oncologist conceded uncertainty. The man contended that his cancer did not become objectively ascertainable until the date of the biopsy.

 

The District Court of the Fourth Judicial District, State of Idaho, Ada County concluded Idaho Code section 5-219(4)’s two-year statute of limitations barred the claims. The trial court reasoned that the man’s oncologist’s testimony did not contradict the dermatologist’s and dermatopathologist’s testimonies. Consequently, no triable issue of fact existed. The trial court granted summary judgment

 

The Supreme Court of Idaho affirmed. The court held that the man’s cancer became objectively ascertainable more than two years prior to the date the man filed the pre-litigation screening application.

 

The man’s cancer became objectively ascertainable more than two years prior to the date the man filed the pre-litigation screening application. The statute of limitations cannot begin to run until some damage has occurred as a result of the alleged malpractice. In determining whether some damage has occurred, the trial court must identify the point in which the fact of injury became objectively ascertainable. “Objectively ascertainable” means that objective medical proof would support the existence of an actual injury. The court found that the undisputed material facts showed that the man’s cancer was objectively ascertainable before the biopsy. The court noted that the man’s oncologist agreed with the dermatologist and dermatopathologist on the material fact that for the man to have had cancer diagnosable by biopsy at the time the biopsy was performed, the cancer had to have existed prior to that point in time. Additionally, the court noted that the man’s oncologist, conceding uncertainty as to when the man’s cancer emerged, did not contradict the dermatologist and dermatopathologist so as to raise a triable issue of fact. The court found that the fact that the PA did not perform or order a biopsy was irrelevant to the question of whether the cancer was objectively ascertainable. The court pointed out that holding that the man’s cancer became objectively ascertainable only when the biopsy actually revealed cancer would equate to applying a discovery rule, which Idaho courts have consistently rejected. The court concluded that the trial court properly granted summary judgment to the PA, the supervisor, and the employer on the grounds that the man’s claim for failure to diagnose cancer was barred by the statute of limitations.

 

The Supreme Court of Idaho affirmed the trial court’s grant of summary judgment to the PA, her supervisor, and her employer.

 

See: Wyman v. Eck, 2017 WL 772639 (Idaho, February 28, 2017) (not designated for publication).

 

See also Medical Law Perspectives, November 2014 Report: More Than Skin Deep: Skin Cancer Misdiagnosis and Other Liability Issues

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

See the Medical Law Perspectives November 25, 2014, Blog: Skin Cancer Incidence Rises; Surgeon General Issues Call to Action

 

See the Medical Law Perspectives November 24, 2014, Blog: CDC Study Shows Skyrocketing Skin Cancer Costs; What Lawyers Can Learn by Examination and Persuasive Presentation of Statistics

 

 

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