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Nevada’s Limitations Begins to Run When Plaintiff Suffers Appreciable Harm; MRSA


An orthopedic surgeon performed emergency surgery on a woman's left knee. During a follow-up appointment twenty days later, the woman complained of pain in her knee that had started one week earlier. The orthopedic surgeon aspirated the knee, and then hospitalized the woman and placed her on additional antibiotics. The aspirated cultures from the woman's knee were sent for testing and tested positive for Methicillin-Resistant Staphylococcus Aureas (MRSA). At that point, an infectious disease doctor was called in for consultation. After her discharge from the hospital, the woman continued to be treated by the infectious disease doctor for her infection and was seen by the orthopedic surgeon several times to monitor the healing of her knee. The woman's MRSA infection persisted.

 

About six months later, in an effort to combat the MRSA infection, the orthopedic surgeon performed another surgery on her knee to remove surgical screws and washers, which were apparently impeding the antibiotics from surrounding and killing the MRSA infection. But the infection continued, and about three months later the orthopedic surgeon lanced her knee and removed a yellowish substance. That was the last date on which the orthopedic surgeon treated the woman.

 

She had two additional surgeries on her knee each performed by a different doctor. The first surgery took place about four months after the orthopedic surgeon lanced her knee. During the surgery a significant nonabsorbable suture nearly four centimeters in length was removed from her knee. The second surgery was performed 28 months later. During the surgery a large knotted permanent suture and a retained suture were removed from her knee. These latter sutures tested positive for the presence of MRSA.

 

One year after the last surgery, the woman sued the orthopedic surgeon. The claim alleged that the orthopedic surgeon failed to remove the suture material retained in her knee during the follow up surgery, that he knew or should have known that the suture material was present and could or would carry MRSA, and that he failed to warn her of the danger of leaving suture material in her knee, all in breach of the standard of care, and resulting in her injuries.

 

As more than three years had passed between the end of the orthopedic surgeon's treatment of the woman and the filing of her complaint, the orthopedic surgeon filed a motion for summary judgment on the basis that no genuine issues of material fact remained as to whether her claims were time-barred by Nevada’s statutory three-year limitation. The woman opposed the motion and argued that her claims were not time-barred because she was not aware after that the sutures removed from her knee were infected with MRSA until after her final surgery. She further argued that the time for her to bring her claims was tolled because the orthopedic surgeon concealed the existence of the MRSA-infected sutures in her knee. The Eight Judicial District Court of the State of Nevada denied the orthopedic surgeon's motion for summary judgment. The orthopedic surgeon petitioned for a writ of mandamus challenging the district court order denying the motion for summary judgment.

 

The Supreme Court of Nevada granted the petition and issued a writ of mandamus directing the district court to grant the orthopedic surgeon's motion for summary judgment and dismiss the patient's complaint as time barred. The court noted that the petition presented an issue of first impression regarding when the three-year limitation period contained in Nevada's medical malpractice statute of limitations, NRS 41A .097(2), begins to run.

 

Nevada's medical malpractice statute of limitations provides that an action against a health care provider must be filed within one year of the injury's discovery and three years of the injury date. In the underlying district court action, the woman brought a claim for injury against the orthopedic surgeon more than three years after she discovered that a serious infection persisted in her knee. The Nevada Legislature tied the running of the three-year limitation period to the plaintiff’s appreciable injury and not to the plaintiff’s awareness of that injury's possible cause. Based on the plain language of the statute, which established “date of injury” as the outer boundary for claim accrual, the court concluded that the three-year limitation period begins to run when a plaintiff suffers appreciable harm, regardless of whether the plaintiff is aware of the injury's cause. Because the woman suffered appreciable harm to her knee more than three years before she filed her complaint, the district court was required to grant the orthopedic surgeon's motion for summary judgment.

 

The Supreme Court of Nevada granted the petition and issued a writ of mandamus directing the district court to grant the orthopedic surgeon's motion for summary judgment and dismiss the patient's complaint as time barred.

 

See: Libby v. Eighth Judicial Dist. Court of State ex rel. County of Clark, 2014 WL 2428791, 130 Nev. Adv. Op. 39 (Nev., May 29, 2014) (not designated for publication).

 

See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who Is Liable and Why?

 

See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements

 

 

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