MedMal: question about CA law / statute of limitations

What is the name of your state? California

My question has to do with the statue of limitations and laws in California, more than whether I have a viable MedMal case or not. I figure if there is nothing I can do, then there's no reason for me to further complicate the question by getting into the exact specifics of the case. If I'm wrong and more info is needed then what I provide, let me know and I'll gladly elaborate.

Background:

A lawyer filed a Medical Malpractice/Negligence/Battery case on my behalf about 7 years ago. He said it was to protect me from the statute of limitations, while we would try to determine if there was any evidence of wrongdoing. The physical evidence was obvious, but of course I would need evidence and an expert witness for the case.

When my lawyer was unable to find anything or anyone to back up my case, he promptly dropped me and wished me good luck. So I was representing myself for the time being. Ironically before this disastrous surgery, I wanted to be a lawyer The defense had me come to their office for a deposition. From this they realized I had no evidence or expert witnesses, so they later asked for a hearing. Before that hearing, thankfully I was able to get another lawyer to represent me. Just before the hearing, the defense spoke with my new lawyer and demanded I drop the case immediately or they would make my life "miserable" by suing ME for a frivolous lawsuit, slander, libel etc. My new lawyer said the judge would side with the defense and dismiss my case at the hearing, because I had no evidence and expert witnesses. She was also concerned for my sake because the Dr. was dead set on revenge, so it wasn't worth the risk of his possible legal retaliation. Especially given my age.

I was a minor when I had the botched procedure, and I was barely 19 at the time this case came about. So I took the threat seriously and complied. Obviously the last thing I wanted was to end up having a judgement against ME, from the doctor who messed me up. So I signed the papers to drop the suit, and my lawyer said that if I later found evidence / an expert who could testify on my behalf, I could potentially reopen the case.

So that's the background. Here I am 7 years later, still receiving treatment/therapy for what this doctor did to me, and now it seems my doctors have finally figured out what happened.

So this begs the question:

Was my lawyer right that I could reopen the case at a later time? If so, is it now too late to do anything since it has been approximately 7 years since I dropped the case?

I realize this is a complex situation, but I was hoping to get some guidance here before I consider looking for a lawyer. If the law is clear and I have absolutely no recourse, regardless of these circumstances, I would prefer to just continue to work on putting this behind me and not waste a lawyers time.

Thank you in advance for any help or advice you can provide.

Originally posted by -Dch-
What is the name of your state? California

My question has to do with the statue of limitations and laws in California, more than whether I have a viable MedMal case or not. I figure if there is nothing I can do, then there's no reason for me to further complicate the question by getting into the exact specifics of the case. If I'm wrong and more info is needed then what I provide, let me know and I'll gladly elaborate.

Background:

A lawyer filed a Medical Malpractice/Negligence/Battery case on my behalf about 7 years ago. He said it was to protect me from the statute of limitations, while we would try to determine if there was any evidence of wrongdoing. The physical evidence was obvious, but of course I would need evidence and an expert witness for the case.

When my lawyer was unable to find anything or anyone to back up my case, he promptly dropped me and wished me good luck. So I was representing myself for the time being. Ironically before this disastrous surgery, I wanted to be a lawyer The defense had me come to their office for a deposition. From this they realized I had no evidence or expert witnesses, so they later asked for a hearing. Before that hearing, thankfully I was able to get another lawyer to represent me. Just before the hearing, the defense spoke with my new lawyer and demanded I drop the case immediately or they would make my life "miserable" by suing ME for a frivolous lawsuit, slander, libel etc. My new lawyer said the judge would side with the defense and dismiss my case at the hearing, because I had no evidence and expert witnesses. She was also concerned for my sake because the Dr. was dead set on revenge, so it wasn't worth the risk of his possible legal retaliation. Especially given my age.

I was a minor when I had the botched procedure, and I was barely 19 at the time this case came about. So I took the threat seriously and complied. Obviously the last thing I wanted was to end up having a judgement against ME, from the doctor who messed me up. So I signed the papers to drop the suit, and my lawyer said that if I later found evidence / an expert who could testify on my behalf, I could potentially reopen the case.

So that's the background. Here I am 7 years later, still receiving treatment/therapy for what this doctor did to me, and now it seems my doctors have finally figured out what happened.

So this begs the question:

Was my lawyer right that I could reopen the case at a later time? If so, is it now too late to do anything since it has been approximately 7 years since I dropped the case?

I realize this is a complex situation, but I was hoping to get some guidance here before I consider looking for a lawyer. If the law is clear and I have absolutely no recourse, regardless of these circumstances, I would prefer to just continue to work on putting this behind me and not waste a lawyers time.

Thank you in advance for any help or advice you can provide.

I am uncertainm about time. In your question you say it is now 7 years later, and you were a minor at the time of surgery. Generally in California a minor has until age 21 to file his medical malpractice lawsuit. If a lawyer filedf for you when you were 21 or older, you should have had about three years in which to activate your case. Apparently the first lawyer served the defendants, and so your case started then. You do not say the case was dismissed. If you signed a document that said you were giving up the case that sounds as if you did ask for a dismissal, but of course the wording of that document b ecomes important.
If I were you I'd see a good old lawyer who is not afraid to go to trial. Where in California are you now? Where did this surgery take place, and what was the surgery? You filed for battery as well as negligence? Had you not given consent for the surgery?
I don't like to say that you should give this up. Obviously you don't want to. Even if that offending doctor threatens you, if you have an expert even though late, that makes your case far better than frivolous. If you are in a county like LA, SF, Alameda or Sacto, you should be able to find a hostile old fart to take your case. At least to explore it. That's where I'd look for a lawyer. Don't give it up yet. Think about it. You may have a legal malpractice, maybe against two lawyers from what I read in your question.

Thank you for taking the time to respond. I live in Colfax, and the nearest big city is Sacramento, which is where the surgery took place and where the suit was filed. I saved the legal files I have from the case, because I thought I may need them someday. I just looked up some of it so I have some more info I can give you.

I had the surgery in December of 1992, I was 16 years old at the time. I had laser surgery to remove what the surgeon called vocal nodules on both of my vocal cords. I went into the surgery with a voice, and came out with no voice. I haven't had a voice since then, 10 years later, and only recently have I had any type of improvement (i.e. not much). You would think something so obvious would be an easy case, but apparently not.

At age 19 I consulted a lawyer in Oct/Nov. 1995, and he agreed to look into the situation. He said the statute was 3 years so he sent a letter of intent to the doctor in Nov. 95, then filed a complaint in January 1996 to protect me from the statute. The complaint says damages for Medical Malpractice, Battery. I think the battery part of the complaint had to do with the doctor not telling me or my parents that there were serious risks involved with this procedure.

Around April/May 1996 this lawyer told me he couldn't go forward with the case because we didn't have an expert witness, so he asked if I wanted to drop it. I refused to give up that easy, so he sent papers to substitute myself as attorney. I represented myself for the next several months, because nobody wanted to touch the case, again because I had no expert witness. I had a deposition requested by the defense in October 1996. After the deposition, I was able to find a lawyer who was willing to take me on and she worked on getting my case in order.

A hearing was scheduled then my new lawyer was contacted by the defense. They told her I'd either have to drop the case immediately, or that Dr. X was going to make my life a living he** after they won the hearing. They threatened lawsuits on the basis I mentioned.

So I looked up the document I signed just now and it's a "Request for Dismissal" form which has "With prejudice" and "Entire action" checkmarked. This was signed in Dec. 1996. I was age 20 at that point. Once they had this document in their dirty hands, the defense lawyer called my lawyer to tell her how sorry he was that this happened. For some odd reason, I didn't take much comfort in that.

I'm 26 now. After all this time passed I had absolutely no improvement until about 8 months ago, out of the blue, so I went back to my doctors (at UC Davis med center, in case you're familiar). I'm continuing with treatment/therapy there and seeing some progress which is encouraging. What I found odd was recently one of my doctors mentioned that they'd never been able to get my reports from the original surgery. I found some of these files within the legal file I saved, so I brought them to her and she said she would let me know what she thinks. At the following weekly visit she spent 20-30 minutes telling me how stunned she was at what she read and explained why.

This is what stirred it all up for me again. I had tried to put it behind me, as much as I could, and I'm willing to do that again if necessary. But I can't help but still be bothered by what happened, and wish I could do something about it.

With the nature of my injury, you can maybe understand why it's just not easy for me to call around to consult with an attorney. Because without a voice I really can't use the phone to begin with. That's why I came here.

Thanks again for your advice and let me know if you need any more info.

[stephenk]

was your lawsuit dismissed with prejudice or without prejudice? It would be on the Notice of Dismissal your attorney signed.

It says dismissed with prejudice.

[stephenk]

then you are out of luck. dismissal with prejudice means it is concluded forever.

Thanks for your help.

I assume that means a dismissal can't be overturned?

I know what Stephenk wrote, and he is right. But I'd still go see a cranky old lawyer who has a good to great trial record and ask him. Many times things can be turned over, and my guess is that a wily old guy could argue that you did not understand your rights, that lawyers without oo much smarts allowed you to be maneuvered into signing a paper that you did not understand, and that you are a citizen who is not expected to know what lawyers should know and on and on in that vein. I have worked for lawyers who have been able to do things that were not expected, and maybe yours is one of them. Certainly your injuries from lousy medical care are serious and even life threatening, and you can't give up too easily. Go ahead and exhaust your options. So, what more can you lose?
I'm just sorry that all the guys I worked for are now dead or in jai. That's one of the disadvantages of being so damned old. I know a couple of them would have jumped on your case, not just because of the medical malpractice, but lawyer malpractice too.
The best way for you to find such a lawyer is to go to the Sacto courthouse and run the index for civil cases, looking for hospitals that have been sued and lost. (I say hospitals because so few of them are out there to index and you have a better chance at finding a case.) List the lawyers who tried the case and won. Then hit the Yellow Pages and see some of them. Why not? You have nothing to lose. Oh yeah, beware the lawyer who talks about getting a settlement. Maybe he is afraid to go to court.

Wow that's a great suggestion, I will do that. I wondered how on earth I would go about finding a good lawyer, and never even considered the method you described.

There's a reason I asked about whether these things can be overturned, or thrown out, whatever the term is. According to this dismissal paper I got out yesterday, I signed it myself and I was listed on it as the attorney, and shown as "Plaintiff in pro per". I thought I had secured an attorney but apparently I didn't, or they would've been listed on this I assume? Obviously given the injury and what I was told about what I was signing, I never would have done so if I knew what it really meant. Well I guess that explains why the defense attorney called who I thought was my attorney, to say he was really sorry for what happened to me. Why would he do that? He knew that it didn't matter because I stupidly signed that paper.

Thanks again for all the advice. I'll be taking a trip to the courthouse

[stephenk]

since you signed it yourself, there is really no cause for setting the dismissal aside. Plus, in California, the court loses jurisdiction to set aside a judgment/dismissal six months after the dismissal/judgment is entered. It's been seven years and there is no legal basis to set aside the dismissal or legal ground for the court to even consider any attempt to set aside the dismissal.

Sorry.

Ok, well at least now I know. Thanks for your help.