Unfortunately, medical malpractice happens all too often. Doctors misdiagnose conditions, prescribe wrong medications, and make surgical errors. Victims of this negligence can face serious injuries including permanent disability requiring long-term care. In the worst cases, the victim dies. While these harms are physically painful, they can also be emotionally trying, throwing a victim into a tailspin of depression. Making matters worse, financial consequences bear down on these victims in the form of costly medical bills. Fortunately, a medical malpractice lawsuit can help these victims obtain compensation for their damages, but only if filed in a timely matter. However, strict rules exist as to how quickly such a suit must be brought. A recent decision by the Court of Appeal for the Second Circuit in Louisiana addressed this issue.
In Davidson v. Glenwood Resolution Authority, Inc., a metal piece of a retractor was accidentally left inside a patient after a 2006 abdominal surgery. However, at the time, neither the doctor nor the patient was aware of the foreign object being left inside the patient. Three months after the surgery, the patient began to feel something sharp in his abdomen that he knew should not have been there. A month after that, the patient had a CT scan after an auto accident which showed the presence of metal within the patient. The doctor who conducted the original surgery was contacted and he, in turn, contacted the patient, but the patient said he felt fine and he did not want to mess with whatever was problematic. It was not until two years later, in 2008, after an MRI was conducted that the patient actually discovered the presence of the metal object. Within a year of that test, in 2009, the patient filed a medical malpractice lawsuit.
In Louisiana, a medical malpractice lawsuit must be brought within one year of the alleged act or within one year from the date of discovery of the act, omission, or neglect. (La. R.S. 9:5628(A)) This means that once the victim obtains actual or constructive notice of the harmful act, the one year clock starts running. Constructive knowledge exists when facts indicate to a reasonable person that he is a victim of a tort. As interpreted by the Supreme Court in Campo, constructive knowledge is whatever is enough to excite attention and puts the plaintiff on guard and calls for inquiry.
With this reasoning in mind, the trial court in Davidson found that the plaintiff had constructive notice of the harmful incident in 2006 and was therefore barred from filing suit three years later. The Court of Appeal affirmed this ruling, stating that the plaintiff knew of the sharp object in his abdomen that should not have been there and that he was told by doctors after his 2006 CT scan that metal was present inside his abdomen. These facts taken together, reasoned the court, would have put a reasonable person on guard and to inquire as to what caused the situation. Thus, the plaintiff was unable to sue and obtain compensation for his damages.
If an individual believes he has been harmed by a doctor’s negligence, he should seek legal advice immediately. Only then can an experienced attorney can help gather facts and witnesses necessary to prove a breach of the duty of care owed to the patient and causation. Once these elements are proven the victim may obtain compensation to help cover medical expenses, lost wages, and pain and suffering.
Medical malpractice cases can be extremely complex. An experienced New Orleans attorney can help a victim develop an aggressive legal strategy that works in his best interest. However, the lawsuit must be timely. Therefore, if you believe you have been harmed by a medical professional’s negligence, do not hesitate to contact The Berniard Law Firm.