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Not All Surgical Injuries May Be Governed by Malpractice Law

Usually when people think of those who are hurt during a surgery, they assume any lawsuit will be a medical malpractice case. And that is usually the case. This can be a blessing, because medical professionals are held to a higher level of professional responsibility. Their duty to a patient is greater than a regular Joe’s duty is to his common man. But it can also be a burden. Due to misguided attempts at so-called “tort reform” over the past decade, many states have put strict statutes of limitations in place that severely limit the amount of time an injured patient has in which he can file a malpractice claim. Interestingly, a New York court has recently held that not all injuries sustained during a surgery are governed by these oppressive time limits.

Case Example
In Newell v. Ellis Hospital, a woman underwent a surgery. Either while or after she was being extubated (having a tube removed from her larynx that is used during surgery to help with breathing), she fell from the operating table and was injured. Three years after the injury she sued the anesthesiologist and the assistant surgeon involved.
The anesthesiologist filed a motion to have the case dismissed, because it was filed after the statute of limitations for medical malpractice claims had run out. In New York medical malpractice claims have to be brought within two and a half years. The trial court ultimately agreed with the anesthesiologist and dismissed the case, but the injured woman appealed.

The appellate court agreed with the injured woman. It explained that the mere fact that the injury happened during a surgery was not enough to classify the claim as a medical malpractice claim. It may very well be a regular old negligence claim that can be filed against anyone, and that carries with it a longer time period in which claims can be filed. It said that her claim would be a malpractice claim if she fell off the table due to improper pressure or movement during the extubation. But if her fall was caused by regular old not medical negligence, like if the hospital staff failed to remove an obstruction between the operating table and the gurney to which they were moving her, then the medical malpractice statute of limitations would not apply.

Ultimately, more investigation will be needed in this New York case in order to determine exactly what caused the fall, and it may ultimately be up to a jury to decide. But at least the case will move forward. The appellate court in this case, however, only has the authority to interpret the law in New York. Unlike decisions of the United States Supreme Court, courts in other states will not be required to follow this decision. But its rationale makes sense.

Under Illinois law, the medical malpractice statute of limitations is even shorter than it is in New York. In Illinois, unless certain special circumstances are present, an injured patient only has two years to file a claim. So if you are injured during surgery, you should contact a medical malpractice attorney as soon as possible. But, if the medical malpractice statute of limitations has run, there may be ways to bring some other sort of claim that is not yet barred, as evidenced by the New York case.

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