Statue of Limitations questions

[kitlobell]

What is the name of your state (only U.S. law)? NY

A down syndrome adult went to the ER (NY State) back in 2009 complaining of a stomach ache. A cat scan was performed and the diagnosis was inflammation around the colon. He was discharged and no major diagnosis was rendered. In March 2013, the same adult goes to the same ER complaining once again of a stomach ache. A cat scan was performed and revealed a 2cm solid renal tumor. However, this same tumor was present back in 2009 but was never revealed in the cat scan report or revealed to the mother of the adult. It was however noted in the 2013 cat scan report that the same renal tumor existed back in 2009 when the original scan was performed. The down syndrome adult now has to have a cryoablation performed along with a kidney biopsy. Has the statue of limitations run out? Isn't this considered continuous treatment since the treatment occurred at the same ER and the diagnosis was revealed at a later date? Doesn't the state of NY have certain rules pertaining to handicapped adults regarding the statute of limitations.

 

[Zigner]

What is the name of your state (only U.S. law)? NY

A down syndrome adult went to the ER (NY State) back in 2009 complaining of a stomach ache. A cat scan was performed and the diagnosis was inflammation around the colon. He was discharged and no major diagnosis was rendered. In March 2013, the same adult goes to the same ER complaining once again of a stomach ache. A cat scan was performed and revealed a 2cm solid renal tumor. However, this same tumor was present back in 2009 but was never revealed in the cat scan report or revealed to the mother of the adult. It was however noted in the 2013 cat scan report that the same renal tumor existed back in 2009 when the original scan was performed. The down syndrome adult now has to have a cryoablation performed along with a kidney biopsy. Has the statue of limitations run out? Isn't this considered continuous treatment since the treatment occurred at the same ER and the diagnosis was revealed at a later date? Doesn't the state of NY have certain rules pertaining to handicapped adults regarding the statute of limitations.

When said individual followed up with their primary physician, were the records reviewed?

 

[tranquility]

I don't think the continuous care exception will be applicable to your facts. Not only is an ER intermittent care generally, but also you had different doctors involved most probably.

when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint

is what stays the statute. Yearly mammograms were considered not continuous care.

Because there was clear malpractice, it seems worthwhile to at least see an attorney. But, since none of the exceptions apply, the 2.5 year SOL seems to preclude a successful suit.

 

[kitlobell]

When said individual followed up with their primary physician, were the records reviewed?

Yes but the primary care physician only received the cat scan report and wasn't forwarded the actual cat scan x ray. He would have no way to know this. He isn't a radiologist.

 

[kitlobell]

I don't think the continuous care exception will be applicable to your facts. Not only is an ER intermittent care generally, but also you had different doctors involved most probably.

is what stays the statute. Yearly mammograms were considered not continuous care.

Because there was clear malpractice, it seems worthwhile to at least see an attorney. But, since none of the exceptions apply, the 2.5 year SOL seems to preclude a successful suit.

What about the exception to handicapped individuals as it applies to the statue of limitations?

 

[tranquility]

What about the exception to handicapped individuals as it applies to the statue of limitations?

I believe the statute says under disability because of infancy or insanity. Down's syndrome is not insanity. But, that might be a reason to see an attorney, he might want to push the law.

 

[ecmst12]

How would treatment have been different if you had known about the tumor sooner? Would the outcome be any different?

 

[kitlobell]

How would treatment have been different if you had known about the tumor sooner? Would the outcome be any different?

Yes, the tumor would have been frozen 4 years ago...

 

[tranquility]

The point ecmst12 was trying to make is, what would the damages be if the malpractice was within the statute? You'd still have to treat. If there was not a change in outcome from the error, you would have no damages.

 

[ecmst12]

Has it grown since 2009? Has he had any symptoms from it? The finding would not be related to his complaints of a stomach ache.

 

[kitlobell]

The point ecmst12 was trying to make is, what would the damages be if the malpractice was within the statute? You'd still have to treat. If there was not a change in outcome from the error, you would have no damages.

He had a severe UTI infection. That is the reason he had pain in his lower right side. There was a little blood in the urine but the culture didn't show cancer cells. There is thickening in the bladder wall which now requires a follow up for a Cystoscopy after the tumor in the kidney is frozen. Cat scan said tumor hasn't grown significantly but did grow a little since 2009.

 

[ecmst12]

It's probably not cancer, if it hasn't grown significantly in all that time, and it probably wasn't causing him any problems during the time it was there. It's likely it was there for a lot longer, without showing any symptoms at all.