Medical malpractice or misjudgment?

[ga15859]

Hello,

My wife and I currently live in Colorado. Four years ago, while skiing for the first time, she suffered a serious injury to her leg. After being taken to the ER in North Carolina, she was left in a room for about 45 minutes, given tylenol and a brace, and told that she "probably just sprained it". My wife healed, and recently she suffered a torn meniscus. When we had the MRI done, the reason was evident - her ACL was virtually gone, and the doctor is convinced that it was from her injury four years ago. Her doctor was able to tell that she had ACL damage in a matter of five seconds, no joke. She underwent surgery Saturday, and because of the length of time of the injury, she lost 60-70% of the cartilage around her knee, and is likely to not be able to do many of the activities that she loves (skiing for example). She's only 22 years old, and we can't believe this has happened! Is this a case of malpractice by the hospital in North Carolina?? Judging by their lack of examination (while she was in the ER no less!!), it seems to me like it sure was!! Do we have a case here, or is this simply a "live and learn" situation? Thanks for your advice...

 

[I AM ALWAYS LIABLE]

Hello,

My wife and I currently live in Colorado. Four years ago, while skiing for the first time, she suffered a serious injury to her leg. After being taken to the ER in North Carolina, she was left in a room for about 45 minutes, given tylenol and a brace, and told that she "probably just sprained it". My wife healed, and recently she suffered a torn meniscus. When we had the MRI done, the reason was evident - her ACL was virtually gone, and the doctor is convinced that it was from her injury four years ago. Her doctor was able to tell that she had ACL damage in a matter of five seconds, no joke. She underwent surgery Saturday, and because of the length of time of the injury, she lost 60-70% of the cartilage around her knee, and is likely to not be able to do many of the activities that she loves (skiing for example). She's only 22 years old, and we can't believe this has happened! Is this a case of malpractice by the hospital in North Carolina?? Judging by their lack of examination (while she was in the ER no less!!), it seems to me like it sure was!! Do we have a case here, or is this simply a "live and learn" situation? Thanks for your advice...

My response:

You would have had a nice malpractice action; however, your wife "sat on her rights" by failing to file a lawsuit in time. She is barred, now, from doing so.

North Carolina Statute
Medical malpractice suits must be brought within three years from the date of the last act of the defendant giving rise to the cause of action or within one year of the date when the injury was or should have been discovered, but not more than four years from the date of the last act of defendant giving rise to the cause of action. N.C. Gen. Stat. §§ 1-15 and 1-52(16) (1996). Foreign object cases must be brought within one year from the date of discovery, but no longer than ten years from the date of the occurrence. N.C. Gen. Stat. § 1-15 (1996). Wrongful death actions based on alleged medical malpractice must be brought within the foregoing period or within two years from death, whichever is shorter. N.C. Gen. Stat. § 1-53 (1996).

IAAL

 

[ga15859]

So doesn't that mean we can?

I apologize on the dates being somewhat vague - here's the official dates:

Original injury: January 17th, 1997
Date of discovery: within the past two weeks

Doesn't that mean that we are within the four year time period, as well as the one year time period for discovering the condition, and that we do have a case? Or am I misunderstanding?

And if we ARE able to date-wise, do we have a good shot at winning against a hospital, or are we in for a horrible experience?

 

[I AM ALWAYS LIABLE]

Re: So doesn't that mean we can?

I apologize on the dates being somewhat vague - here's the official dates:

Original injury: January 17th, 1997
Date of discovery: within the past two weeks

Doesn't that mean that we are within the four year time period, as well as the one year time period for discovering the condition, and that we do have a case? Or am I misunderstanding?

And if we ARE able to date-wise, do we have a good shot at winning against a hospital, or are we in for a horrible experience?

My response:

For some unknown reason, you have "four years" stuck in your mind. That's wrong. Please read the statute once again, and then re-read my original response.

Here's the dispositive phrase from the Statute:

" . . . or within one year of the date when the injury was or should have been discovered"

You see, your wife had to have been in pain for a very long time, and only when the pain became unbearable did she finally see a doctor to have an operation. But, the lengthy time she was in pain was a "tip-off" that something was wrong, and therefore "should have been discovered" sooner (the reasonable person rule) and then exercised her rights; e.g., the MRI could have been taken months earlier and would have shown the same results. But, she waited too long to have the MRI and finally seek the medical relief she needed.

IAAL

[Edited by I AM ALWAYS LIABLE on 12-19-2000 at 01:29 PM]

 

[ga15859]

Actually, she wasn't in pain at all! Apparently when you have a good meniscus and you tear your ACL, it can reach the point rather rapidly where you won't be in pain (as our doctor also explained). In fact, we had no idea anything was wrong at all until her knee popped in November. We found out that this happened because she didn't have an ACL to support her knee, and when she slipped on a step, her meniscus was completely torn.

The problem boils down to that we didn't know this occurred until just recently when her MRI was performed, and based on the hospital statements (and lack thereof), we assumed it was nothing to worry about. However, we now know that she did tear her ACL back then, and that it wasn't properly diagnosed (and much more upsetting, wasn't even checked for).

In regards to the "should have been discovered", based on what the doctors here say, the original hospital should have checked for it, but they didn't, and we had no way of really knowing it happened, other than the few days of pain, until something else resulted from this injury...