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Failure to Order Follow-up Tests Does Not Trigger Statute of Limitations, Nor Does Cancer Diagnosis in Negligent Failure to Diagnose Cancer Case


A man underwent a colonoscopy. The doctor who performed the colonoscopy did not order a follow-up colonoscopy within two to three years. A little over three years after the colonoscopy, the man was diagnosed with colon cancer.

 

One year after his diagnosis, the man sued the doctor who performed the colonoscopy for falling below the standard of care by failing to order a follow-up colonoscopy within two to three years. The man also sued the hospital where the colonoscopy took place under a theory of ostensible agency. The district court dismissed the complaint against the hospital for failure to attach an expert affidavit as to the hospital. The plaintiff filed an amended complaint four months later with an appropriate expert affidavit attached.

 

The doctor filed a motion to dismiss arguing that the plaintiff’s claim was time-barred under Nevada's statute of limitations governing medical malpractice claims. The doctor reasoned that the alleged negligence occurred at the time of the colonoscopy when he failed to order the follow-up colonoscopy. As this suit was filed over four years later, it was time-barred by the statute’s three-year limitation period.

 

The hospital filed a separate motion to dismiss arguing that the plaintiff’s amended complaint was time-barred under Nevada's statute of limitations governing medical malpractice claims. The hospital reasoned that the plaintiff discovered his injury at the time of his cancer diagnosis. As the amended complaint was filed sixteen months later, it was time barred by the statute’s one-year limitation period.

 

The district court denied both motions to dismiss. The defendants petitioned the Supreme Court of Nevada for writs of mandamus directing the district court to dismiss the complaints on the ground that they failed to state a claim upon which relief could be granted because they were time-barred as a matter of law.

 

The Supreme Court of Nevada denied the petitions. Nevada's statute of limitations governing medical malpractice claims states, “[A]n action for injury or death against a provider of health care may not be commenced more than three years after the date of injury or one year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first . . . .”

 

“Injury” does not refer to the allegedly negligent act. Rather it refers to the “legal injury.” The legal injury in a medical malpractice case includes (1) the doctor's conduct departing from the accepted standard of medical care or practice; (2) the doctor's conduct both actually and proximately causing the plaintiffs injury; and (3) the plaintiff suffering damages. The court reasoned that in this case the plaintiff was not damaged until he contracted colon cancer. Therefore, the plaintiff could not have suffered a legal injury until his diagnosis, which was within one year of the filing of his complaint against the doctor. Thus, the plaintiff’s claim against the doctor was not barred by the statute of limitations.

 

A plaintiff does not “discover” his injury merely when he realizes he has been harmed. A plaintiff discovers his injury when he realizes that he has been harmed and has facts before him that would have led an ordinarily prudent person to investigate further into whether his injury may have been caused by someone's negligence. The court reasoned that in this case the plaintiff was not put on inquiry notice as a matter of law simply by his cancer diagnosis. The trier of fact must determine whether the plaintiff had facts before him that would have led an ordinarily prudent person to investigate further into whether his injury may have been caused by someone's negligence. Thus, the district court was permitted to deny the hospital’s motion to dismiss.

 

See: Shaposhnikov v. Eighth Judicial Dist. Court of State ex rel. County of Clark, 2012 WL 5378193 (Nev., October 31, 2012) (not designated for publication) and Sunrise Mountainview Hosp., Inc. v. Eighth Judicial Dist. Court of State ex rel. County of Clark, 2012 WL 5378208 (Nev., October 31, 2012) (not designated for publication).

 

See also the October Medical Law Perspectives report on Misdiagnosis of Cancer.

 

 

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