The Associated Press reported this week on the latest developments in a medical malpractice suit filed by a military veteran in his quest to seek compensation from the Department of Veterans Affairs The suit attracted much media attention, because it was connected to system-wide concerns about the care provided to veterans at these facilities. In particular, there were many concerns that thousands of patients may have developed hospital-acquired infections. Each Chicago medical malpractice attorney at our firm appreciates that these sorts of preventable infections are one of the most common forms of serious medical errors.
The plaintiff in this latest case is a veteran who claims that he contracted hepatitis B because of errors by staff members at a veteran’s hospital. He alleged that staff members at the facility did not properly clean colonoscopy equipment, resulting in transmission of the hepatitis. Of course, these are very serious claims; many other veterans may have been similarly harmed by chronic cleanliness problems at these facilities.
The Problematic Legal Issue
Last week a federal appeals court judge ruled against the man, however, holding that his claim was time-barred. The Illinois medical malpractice lawyers at our firm often explain to local residents that statutes of limitations make it important to seek out legal help quickly. These rules set time limits on when a lawsuit must be filed following an act of negligence. Failure to file the suit in a timely fashion may result in forfeiture of the ability to seek compensation at all.
However, these rules present complications in medical malpractice cases. The most obvious issue is when the “clock” starts running. In some cases it is settled that a “discovery rule” applies. This means that the clock for statute of limitation purposes begins when the patient actually learns about the error-not when the mistake occurs. However, the rules are somewhat different in certain cases.
In this case, the plaintiff was notified in 2009 that he, along with 10,000 others, were at risk of suffering from hepatitis B, hepatitis C, or HIV because of endoscopic cleaning mistakes. All told at least 90 patients had contracted one or more of the viruses.
About 10 months after being made aware of his situation the man began the medical malpractice filing process-in this case by filing an “administrative tort” claim. However, a district court judge ruled that the man was barred from filing the claim because he filed the suit (in December of 2009) just over three years after the medical error (October 2006). The court ruled that the only way something akin to the discovery rule would apply was if the plaintiff was claiming fraudulent concealment. In other words, the court ruled that the statute of limitations could only be “tolled” if the man argued that the negligent medical providers intentionally tried to hide knowledge of the error.
Medical malpractice lawyers across the country have voiced disagreement with the decision. The state where this particular suit was filed, Tennessee, does not apply the discovery rule in most cases. Each state is different on these issues, and so if you have any questions about how these rules might apply in your case, it is critical to speak with a legal professional as soon as possible to understand the situation.
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