Ms. N, 35, surveyed the packed waiting room and sighed. After eight years as a nurse practitioner in the pediatric unit of an inner-city medical center, she was feeling burned out. She had taken the job with the best of altruistic intentions, but now, when she looked at the crowd in the waiting room, she didn’t feel inspired—she just felt tired.

One of the waiting patients was 6-year-old Mary G., who was brought in by her mother. “Her jaw hurts, and she’s been crying from the pain,” Mrs. G explained.

The NP noted that Mary had a swollen jaw and that her temperature was 102°F. She diagnosed tooth decay with infection, prescribed amoxicillin, and referred the patient to the medical center’s dental clinic for treatment.

A week later, Mary and her mother were back. The child had taken the antibiotic as prescribed, but her jaw was more swollen and her fever had not abated. Ms. N again referred the family to the dental clinic, where a dentist extracted one of Mary’s teeth. He told Mrs. G the decaying tooth had created a small fluctuant mass on the child’s lower jaw and was responsible for the continuing fever. With the tooth removal and the antibiotic therapy, her symptoms should resolve, he said.


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But the swelling and fever were still present when the pair returned for a follow-up, and the dentist began to question his diagnosis. He told Mrs. G to bring Mary back in a week for another follow-up. When he noted that Mary’s jaw remained swollen and the fever still hadn’t broken, he sent the family back to the pediatric clinic.

Mrs. G brought Mary to Ms. N two more times over the course of the next two weeks, pointing out that the little girl now had neck pain and stiffness in addition to the fever and swelling. The NP recorded that the child was not improving, prescribed a different antibiotic (clarithromycin), and referred the child to the dental clinic again. This time, the dentist also noted the swelling and neck stiffness and referred Mary back to the pediatric clinic. Despite these repeated referrals back and forth, Ms. N never called the dentist, nor did he call Ms. N to discuss the case.

Frustrated by six weeks of appointments with no progress, Mrs. G ultimately took Mary to the emergency department of the local hospital. The fever, neck pain, and swelling had become more severe. At the hospital, a CT scan revealed a deep neck-space infection extending from below the jaw into the cervical spine. Mary had developed osteomyelitis, and it had destroyed parts of her top two cervical vertebrae.

Mary required a long hospital stay and extensive surgery to treat the infection and had to wear a cervical collar for several months. Her top two vertebrae grew back fused on the right side, permanently impairing her movement and preventing her from turning her head or looking over her shoulder. In addition, the doctors warned, she would likely suffer accelerated degenerative disk disease in the vertebrae below the fused bones.

About a year later, Mrs. G saw a television ad for a plaintiffs’ attorney who specialized in medical malpractice. She called the toll-free number and made an appointment. At the meeting with the attorney, she explained how the child had been shuttled back and forth between the pediatric and dental clinics for six weeks while her condition deteriorated.

“Each one thought it was the other’s responsibility,” Mrs. G said. “The nurse kept saying it was dental, and the dentist kept saying ‘go back to the nurse.’ Each time we went one place, they sent us back to the other, but they never talked to each other!”

The attorney listened, reviewed the medical records Mrs. G had brought, then called a physician for advice. “If this infection had been caught, say at least two weeks earlier, would the damage have been this severe?” he asked.

“No,” the physician replied. “If it had been diagnosed earlier, she almost certainly could have been successfully treated with IV antibiotics. That would have avoided surgery and the resulting vertebral damage. Had the two clinicians communicated, they should have been able to properly diagnose.”

The attorney turned to Mrs. G. “I’ll take the case,” he said.

After visiting the medical center and reviewing the on-site records, the plaintiffs’ lawyer hired several experts to build his case: a family practice physician, an NP, a dentist, a professor of pediatric otolaryngology, and a board-certified spinal surgeon.

Armed with their reports, the attorney filed a lawsuit against Ms. N, the dentist, and the medical center on behalf of his young client. It was now 2½ years after the incident. The attorney was aware that the state had a two-year statute of limitations on filing a malpractice case, but he wasn’t concerned. He mistakenly believed that in the case of a minor, the statute of limitations wouldn’t start running until she reached age 18.

Ms. N’s insurance company provided her defense attorney. He assured her there was nothing to worry about because the plaintiffs’ lawyer had missed the filing deadline.

“We’ll just ask for the case to be dismissed,” he said confidently. “We won’t even get to the negligence issue.”

But when the plaintiffs’ attorney explained why he thought  he had acted correctly, the judge applied the doctrine of “equitable tolling,” ruling that it would be unfair to the plaintiff if the lawsuit were dismissed on such a technicality. 

A trial was scheduled, but before jury selection began, the parties settled out of court for $750,000.

Legal background

The equitable-tolling doctrine can rescue a case that ordinarily would be dismissed because it wasn’t filed on time. Although infrequently used, judges can allow a late filing if dismissal would be extraordinarily unfair, provided the attorney demonstrates due diligence in pursuing the claim. 

Here, the plaintiffs’ lawyer visited the clinic, hired numerous experts, read their reports, and made every attempt to pursue Mary’s claim. The judge felt all that activity showed good faith and that the little girl deserved her day in court.

Protecting yourself

No one will ever know what Mary’s prognosis might have been under other circumstances. She might not have responded to treatment, or other complications might have arisen. But risk management should not rely on hoping the case will be dismissed because the plaintiffs’ lawyer made a technical mistake.

Communication, both with patients and other clinicians, is essential in patient care. When the dentist referred Mary to the clinic after the extraction follow-ups, Ms. N should have called him before sending the child back to the dental clinic. Similarly, the dentist can be faulted for not calling Ms. N and telling her that Mary’s deteriorating condition didn’t appear to be caused by a dental issue. And Mrs. G could have voiced her frustration to Ms. N after the second round of referrals, long before she found it necessary to consult a lawyer.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.