A 65-year-old truck driver (who I will call “Mr. Smith” to protect confidentiality) consulted me for a second opinion on his medical malpractice claim. One month earlier he was told he had terminal liver cancer and only months to live. As that bad news was sinking in, his oncologist wanted to know why he had delayed getting treatment for several years. Mr. Smith was totally perplexed. His oncologist showed him a CT scan from 2 years 8 months earlier, which described an “ominous” lesion on Mr. Smith’s liver that required immediate biopsy.
His oncologist told him the tumor had grown substantially and spread since the earlier CT scan, so treatment was no longer possible. As Mr. Smith absorbed all this information, he was shocked and angered. He had not been told of the earlier CT results or the early cancer finding.
Mr. Smith’s medical history indicated that 2 years 8 months earlier he was having GI complaints. His regular doctor ordered a series of tests which included the abdominal CT scan. The scan report, which described an ominous liver growth, was mailed and faxed to his doctor’s office. It was a large group practice.
Somehow the report got lost in Mr. Smith’s file. Mr. Smith’s medical record documented that his doctor was unaware of the tumor. In fact, his medical record made no mention of the CT scan, liver tumor, or that Mr. Smith was informed of the potential cancer.
Mr. Smith consulted a local attorney. That attorney told him his claim could not be brought to court because of the 2 1/2 year medical malpractice statute of limitation. At that time, the New York statute of limitation began from the date of the error, not the date the patient discovered the error. In this case, the patient did not learn of the medical error until after the 2 ½ year medical malpractice statute of limitation had expired.
Mr. Smith reached out to me for a second opinion.
He was angry about the lost chance for earlier treatment and very concerned about how his family would manage financially after he was gone. The statute of limitation was designed to prevent stale claims. Here, the claim was not stale. The medical malpractice claim arose and expired without the client ever knowing it existed.
I felt tremendous empathy for Mr. Smith’s plight. After doing some research, I realized his only chance for a claim would be to argue that the doctor’s error constituted ordinary negligence and not medical malpractice. An ordinary negligence claim is subject to a 3-year statute of limitation and would not be time barred.
We sued and within 30 days the defendants moved to dismiss the claim as untimely. The defendant’s argued that the shorter medical malpractice time limitation should apply because activities dealing with physicians and CT scans were inherently medical in nature. They cited case law that supported this position.
We argued that the essence of the issue was not medical but rather a simple communication error. No medical judgment or medical skill was required. His doctor simply had to give the CT scan report to Mr. Smith or tell him what it said. Luckily, the judge, who was the son of a physician, understood and agreed that the error was ordinary negligence and ruled in our favor. The case was not time barred.
Unfortunately, Mr. Smith became increasingly ill. He testified at a videotaped deposition to preserve his testimony for trial. He was a very compelling witness. The defense lawyers asked him no questions.
Shortly after the deposition Mr Smith passed away and his wife continued with the lawsuit.
As the case proceeded, it became evident that the defense would argue that Mr. Smith never had a chance and they didn’t give him this horrible disease. They maintained that he had a very bad type of liver cancer, so earlier diagnosis and treatment would have made little or no difference. The cancer was always terminal and no treatment was effective. The defense shared with us research and studies involving thousands of patients, all of which supported their position.
We had the burden of proof to show that the delay caused Mr. Smith to lose some chance of a better outcome with a longer life and possibly a chance of remission or cure. We needed a strong medical witness.
We consulted a number of oncologists and cancer surgeons. Eventually, we consulted a hepatic surgeon at a national cancer center. He performed surgery on liver cancer patient’s weekly. He had done extensive research in the field and had numerous peer reviewed publications dealing with liver cancer. The surgeon reviewed Mr. Smith’s medical records, the original CT scan films and pathology slides from the liver biopsy. He agreed that the delay mattered.
The expert dismissed the unfavorable liver cancer research provided by the defense team. None of the patients in those studies were subject to an almost 3-year treatment delay.
We disclosed our expert’s credentials and opinion to the defense. They knew we had retained a nationally recognized expert. Despite the expert, we still had to conduct over 10 depositions and extensive litigation. We had two private mediations with the defense attorneys where efforts were made to settle the case. In the end, the defense recognized that the opinion of our highly credentialed expert, coupled with the indisputable profound loss on the Smith family, would likely result in a large plaintiff’s verdict.
The case was settled under a confidentiality agreement for a substantial 7-figure amount. I took satisfaction in knowing that Mr. Smith knew his claim had dodged the statute of limitation defense and that his wish for his family to be taken care of was achieved.