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Attorneys


What proof is needed to recover for an injury related to an unnecessary cardiac procedure? And, what is a potential strategy for the attorney to employ?

 

The attorney bringing an action for an injury related to an unnecessary cardiac procedure will need to determine the legal cause of action that provides the best match between the facts and circumstances of the injury. The attorney also will need to present proof to establish the required elements of the cause of action, and may need to establish that the action has been brought in a timely manner.

 

When a client comes to an attorney to discuss a claim for an injury related to an unnecessary cardiac procedure, the attorney’s first step should be to obtain as much information as possible about the facts and circumstances of the injury. The attorney then must determine the appropriate legal cause of action on which to base the client’s claim. The attorney will need to establish each of the required elements of the cause of action selected, which often requires expert testimony. The choice of the cause of action will affect the applicable procedural requirements and statute of limitations. See generally: Proof of Unnecessary Cardiac Procedures, 129 Am. Jur. Proof of Facts 3d 1; Cardiological Malpractice Litigation, 68 Am. Jur. Trials 151; Litigating Cardiac Assist Device Product Liability Cases, 104 Am. Jur. Trials 179.

 

In some circumstances, the attorney may need to establish that the client’s claim has been brought on a timely basis. Determining whether a statute of limitations bars an action may involve examining issues such as determining which statute of limitations applies, when the statute begins to run, and whether any exceptions may apply to delay the start or interrupt the running of the statutory period. If the defendant argues that a claim is untimely based on a statute of limitations or statute of repose, the plaintiff’s attorney must be able to demonstrate why the claim is not barred as untimely. See generally: Am. Jur. 2d, Limitation of Actions §§ 1 to 408; Solving Statute of Limitations Problems, 4 Am. Jur. Trials 441.

 

A patient’s claims against a physician and a medical center for damages related to allegedly fraudulent and unnecessary heart procedures were not barred by the medical malpractice statute of limitations, a court determined. After the patient presented to the emergency room complaining of chest pain, nausea, and vomiting, he was transferred to the medical center, where he was seen by the defendant physician. The physician performed a cardiac catheterization and placed a stent in the patient’s heart. Two months later, the patient experienced chest pain again and was admitted to the medical center again, where the physician performed another catheterization and placed three stents in the patient's heart. After being discharged, the patient returned to the medical center a month later for another catheterization. Less than two years after that, the patient was admitted to the medical center again, and the physician performed an angioplasty and placed another stent in the patient's heart. Approximately nine months after the angioplasty procedure, the patient became aware that the physician was being investigated for fraud related to unnecessary cardiac testing and treatment that the physician had allegedly performed on his patients. The medical center had set up a telephone number its patients were instructed to call to determine whether they had received any unnecessary treatment. When the patient called, he was told that “the matter would be investigated and that he could expect a return call.” A medical center representative called the patient the next day to inform him that the stenting procedures performed by the physician “were indeed necessary.” The patient relied on this information and did not pursue the matter, until he received a letter, more than four and a half years later, from the Department of Justice “informing him that a review of his medical records indicated that cardiac stenting and certain other procedures performed on him at [the medical center] by [the physician] were unnecessary.” Approximately 11 months after receiving this letter, the patient filed an action against the physician and medical center, alleging negligence, lack of informed consent, negligent supervision and privileging, loss of consortium, and fraud by intentional misrepresentation.

 

The defendant medical center filed a motion to dismiss and the defendant physician (who, at the time of trial, was serving a term in federal prison for criminal health care fraud related to heart procedures he performed at the medical center during the time he treated the patient) filed a motion for judgment on the pleadings. Both defendants’ motions argued that the patient’s claims were barred as untimely under the Maryland medical malpractice statute of limitations. That statute provided that a medical malpractice action for damages must be filed within the earlier of: (1) five years of the time the injury was committed; or (2) three years of the date the injury was discovered. The defendants asserted that the latest the patient could have filed suit was five years after the last procedure, but the “earlier” date the limitations might have run would have been three years after the patient admitted he first was put on notice by news reports that the treatment he received from the physician may have been unnecessary. The medical center also argued that the fraud claim was subject to a general three-year statute of limitations, and was barred because the alleged fraud occurred when the medical center called the patient and informed him that the treatment he received was entirely necessary, which occurred more than three years before the action was filed.

 

The court noted that the patient’s fraud claim did not automatically accrue when he received the phone call from the medical center. Instead, the court stated, it accrued when the patient, “through the exercise of due diligence, should have discovered” the fraud. More importantly, the court concluded, if the medical center committed fraud by telling the patient that the physician did not perform any unnecessary treatment on him, then the statute of limitations for all of the patient’s claims would also have been tolled until the fraud “should have [been] discovered.” The patient argued that he “should have discovered” the fraud only when he received the letter from the Department of Justice alerting him that he had received unnecessary treatment, and thus the statute of limitations was tolled for four years from the medical center’s phone call through the date the patient received the letter. This tolling period would mean that the action was filed well within the three or five year statute of limitations. The defendants contended that the patient had not sufficiently alleged any fraudulent concealment, and that, even if he had, he did not exercise the “ordinary diligence” necessary to invoke the statutory provisions for tolling the limitations period based on fraudulent concealment. The court determined that dismissing the patient’s claims on limitations grounds would be premature, because under Maryland law the questions of whether a defendant had fraudulently concealed a cause of action and whether a plaintiff had exercised ordinary diligence in investigating a claim were usually questions for the jury. At this stage of the litigation, when no discovery had been conducted, the court concluded that it would not be proper to find, as fact, that the medical center did not intentionally mislead the patient into believing he had not been wronged by the physician. It also would not be proper at this stage to find that the patient was not diligent because he relied on, and was not skeptical of, the medical center's representations to him, the court stated. The court determined that the patient’s allegations were sufficient to warrant discovery going forward against all of the defendants, and denied the medical center's motion to dismiss and the physician's motion for judgment on the pleadings. See: Peacock v. Peninsula Regional Medical Center, 2013 WL 3146930 (D. Md., Jun. 18, 2013) (not designated for publication).

 

For counsel to be successful in litigation involving an unnecessary cardiac procedure, investigation of the facts and circumstances must be conducted, the appropriate cause of action must be selected, and counsel must:

  • Determine the required elements of the cause of action selected
  • Present proof to establish the required elements of the cause of action
  • Comply with the procedural requirements for the cause of action
  • If necessary, establish the timeliness of the claim (for example, by demonstrating the applicable statute of limitations and any exceptions to the tolling of the limitations period that may apply)

See: Practice the Techniques - Checklists providing an example fact checklist that can be used to determine liability for an unnecessary cardiac procedure

 

 

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