The timing of when a civil action is filed can determine whether or not the lawsuit is heard at all in the civil justice system. Massachusetts General Laws dictate the period in which a Massachusetts medical malpractice action must be filed following an accident or injury. When the injury involves medical malpractice among a series of appointments, doctors, and care over a period of time, it can become very difficult to pinpoint whether the date an injury occurred was within the prescribed three-year period. Prior case law established it is not necessary the plaintiff knows the defendant was actually responsible for the injury, only that the medical care given by the defendant may have caused the injury.
This is seen in a recent Appeals Court decision (17-P-722), in which an injured patient and her husband were prevented from pursuing their negligence and loss of consortium claims against the treating physician and hospital providing medical care following a laparoscopic sigmoid colectomy. This patient suffered from medical abdominal issues prior to this procedure, and she sought treatment in 2012 after she was diagnosed with diverticulitis. Following the colectomy, her recovery was challenged by difficulties with the abdominal fluid drainage and a slow return to gastrointestinal function. She was discharged but returned a week later after experiencing chills, cramps, and emesis. The physician re-examined her and told her he believed she had a small bowel obstruction due to internal organ adhesions.
Eventually, she was transferred to a different hospital for care by a different surgeon. Tests taken at this location showed urine was leaking from her left ureter into her pelvis, which was likely caused by the prior procedure that severed her ureter. A special tube was required to drain urine from her left kidney. In the following month, she was seen again at the second hospital with infections from the tube. She had surgery the following March to repair the severed ureter into the bladder, and this operation confirmed the ureter had been severed during the initial surgery.
The plaintiff under care continued to have abdominal issues and asked her primary care physician about the cause of the pain. She attempted to ask the other treating physicians about the case but found their responses evasive. Eighteen months after her second procedure, she hired an attorney to make the same inquiries through writing, but she received no response. In August 2015, she asked her attorney for an independent examination, but it did not occur until September 2016. During this appointment, the physician established the severed ureter was the substantial cause of her medical and surgical problems. This physician concluded the severed ureter and failure to discover it to remedy her pain and complications was not malpractice, given her complicated medical history. However, he noted that under the circumstances, she understood it would be irresponsible and acting in bad faith to initiate a civil action against her treating physicians while she continued to have treatment for pain.
To determine when the statute of limitations began, the appellate court looked at case law for guidance. Massachusetts law states that the statute of limitations begins when the event or events occurred that were reasonably likely to put the injured party on notice that someone may have caused her injury. Once the injured person has knowledge or sufficient notice she was harmed and what the cause of harm was, the period of time begins. It is then up to the injured person to discover whether his or her theory of causation is supported. The Appeals Court agreed with the trial court that the plaintiff’s cause of action accrued no later than March 2013, when she had the second procedure and it was confirmed her ureter had been severed during the first operation. The order of summary judgment dismissing the complaint as time-barred was affirmed.
This case demonstrates the need for experienced counsel who have a deep understanding of personal injury law. If you suspect you’ve been injured during a medical procedure, call the Massachusetts personal injury attorneys at Karsner & Meehan for a confidential consultation today at 508.822.6600.
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