Published on:

State Supreme Court allows medical malpractice claim after patient’s death

Doctors argued to a State Supreme Court that they could not be sued by the family of a deceased woman, even though it was their medical malpractice and failure to diagnose cancer that contributed to her death. They said that, when the woman died, her medical malpractice suit “evaporated” and her surviving sons did not have standing to pursue the claims. Fortunately, the irony of this argument was not lost on the high court, and the sons’ victory will provide them with the opportunity to present their mother’s case before a jury.

At issue in the case was the statute of limitations. In medical malpractice claims, a patient must file suit within two years of the malpractice. However, if the malpractice is of the type that a patient would not be able to discover until much later, the judge may rely upon the state constitution to permit evidence outside of the statutory period.

In this case, the woman first went to the doctor in 1998, where her doctors misdiagnosed her bleeding and constipation as hemorrhoids. The result from the woman’s next three visits for the same symptoms was identical. The doctors failed to order a colonoscopy, which is the leading method of colon cancer detection and is typically recommended for patients over 50.

The suit for medical malpractice and failure to diagnose cancer was not filed until 2002. This meant that the intial four visits where the woman’s cancer should have been caught would fall outside the statutory period unless specially permitted into evidence. As lawyers battled over the issue of these first four doctor visits, the woman eventually succumbed to her cancer. At that point, the doctors’ strategy was to try and get the case dismissed in its entirety.

The state Supreme Court’s decision that the woman’s sons could still pursue the medical malpractice claim still leaves the question on the admissibility of the first four visits to the trial court.

Click here for the full article Click here for a prior article on the woman’s condition