Legal Background

On appeal, Mrs H argued that she failed to discover the full scope of Ms J’s negligence until November/December, when surgery was finally recommended as the only remaining option. Thus, she argued, the statute of limitation should have started running in November/December, not in September.

The appellate court, however, disagreed. “The statute of limitations should begin to run when the plaintiff should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent,” wrote the court. Thus, the date that Mrs H learned she would need surgery “is not relevant to the running of the statute of limitations if she knew or should have known that the defendant’s alleged negligent conduct caused injury.”


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There was no dispute that in September, Mrs H learned she had tendon dysfunction and a stress fracture that had been previously undiagnosed despite the treatment she had received from Ms J. Thus, the court concluded that Mrs H should have known about the alleged negligence in September, and the statute of limitations began running from that date. The court concluded that the statute of limitations had run out and that Mrs H could not bring the lawsuit.

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Protecting Yourself

There were several instances where Ms J recommended tests or referrals that were refused by the patient. Keeping accurate notes of every time a test, procedure, or referral is recommended and then refused by the patient would have been helpful had this case actually gone to trial.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.