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Delay in Diagnosing Medical Malpractice Is Prejudicial To Your Legal Remedies

If you have a medical procedure but fail to obtain a favorable result, it could be the result of medical malpractice. As such, it is wise to seek a second opinion and perhaps diagnostic studies to confirm whether or not such is the case in order to (1) properly diagnose the problem and fix it; and (2) preserve your legal rights and remedies against the physician or hospital that performed the prior medical services in a negligent manner.

IN MOST CASES INVOLVING MEDICAL MALPRACTICE, THE STATUTE OF LIMITATIONS BEGINS TO ACCRUE FROM THE DATE THERE IS SOME DAMAGE PERTAINING TO THE ACT OR OMISSION COMPLAINED OF AND THE INJURY TO THE PLAINTIFF OCCUR AT THE SAME. 

To illustrate the problem, we turn to the case of Patrick Stuard v. Samuel Jorgenson, M.D., 150 Idaho 701, 249 P.3d 1156 (2011). In Stuard, the plaintiff sought treatment for mid-back pain. The surgeon recommended the patient have surgery to correct the problem which was conducted on July 15, 2004. Unfortunately, the surgeon performed the surgery in a negligent manner by operating on the wrong disc. The plaintiff went back to his surgeon on a number of times. X-rays were taken, but the surgeon failed to identify that he had operated on the wrong disc until after the statute of limitations had passed.

On August 6, 2006, the plaintiff had a second work related accident. A MRI was ordered, and later the workers compensation nurse case manager discovered that the surgeon had operated on the wrong disc in the first surgery in 2004. The patient was referred to another surgeon who fixed the problem that the first surgeon failed to repair.

Subsequently, a prelitigation screening panel was conducted and suit was filed seeking compensation for the first surgeon’s malpractice. The surgeon’s attorney filed an answer which included an affirmative defense that the claim for medical malpractice was time barred due to the expiration of the statute of limitations. The District Judge agreed and entered summary judgment against the plaintiff. On appeal, the Idaho Supreme Court affirmed the District Court’s decision. The Idaho Supreme Court reasoned that the accrual of the statute of limitations arose at the time of the initial surgery, because there was some damage that was objectively ascertainable from the first botched surgery that remained unresolved and was later ascertained by the taking of a MRI.

Albeit the patient went back repeatedly to see his original surgeon for follow up care, the surgeon continued to miss the fact that he had performed the original surgery in a negligent matter. The error was ascertained only after the second accident occurred after the 2 yr statute of limitations had expired once the MRI had been conducted.

So what could the plaintiff had done differently?

The Idaho Supreme Court reasoned that since the disc remained herniated due to the failure of the surgeon to operate on the disc at the proper level, the malpractice was objectively ascertainable by way of a MRI that was never conducted until the second injury occurred. That being the case, the only thing the plaintiff could have done was (1) obtain a second opinion by another doctor following the surgery; and (2) have a MRI performed prior to the expiration of the 2 year statute of limitations.

Medical malpractice cases are complex fact patterns with profound legal implications. If you believe you may be the victim of medical practice, you should immediately seek a free initial consultation from an experienced malpractice attorney. Boise Personal Injury and Malpractice Trial Lawyer Alan Morton has over 31 years of experience in handling personal injury and medical malpractice claims. You may contact Mr. Morton for an initial free consultation by calling 208.344.5555 or toll free at 888.716.8021 or by completing the online contact form .

You may also wish to review the testimonial page of Mr. Morton’s clients as well. Call Mr. Morton. Right now!! He would be happy to discuss with you the facts of your case.


Alan Morton
Advocate for Justice/Trial Lawyer