Our Boston personal injury lawyers know the statute of limitations is always a major concern in the timing of filing a negligence action.
In Wilkinson v. East Cooper Community Hospital, an appeal heard in the South Carolina Supreme Court, the plaintiff was admitted to the defendant hospital in 2008 to undergo reconstructive breast surgery.
Once the surgery was complete, the plaintiff began to experience medical complications, and she required additional surgical procedures. Just short of three years following the surgery, the plaintiff filed a Notice of Intent (NOI) to file a lawsuit, because the statute of limitations was about to run.
The state statute pertaining to the filing of a NOI required that, in a medical malpractice case, the NOI be filed with an expert declaration. In this case, the plaintiff did not file an expert declaration with the NOI but chose instead to state in the filing that she intended to name an expert at a later time.
A month after she had filed the NOI, the plaintiff filed an affidavit from a plastic surgeon who was to be her expert witness. This filing was just after the statute of limitations had run. Statute of limitations in a personal injury case is a law that governs how much time a plaintiff has following an injury to bring a lawsuit.
In Massachusetts, the statue of limitations on medical malpractice claims is three years following an injury, and in no case more than seven years after the conduct which caused the injury. The only exception to this rule is in a case when a doctor leaves a foreign instrument in the human body. For example, if there is a surgical tool or sponge left in the body, that statute of limitations may not apply. It is for this reason that hospitals now have a nurse or medical technician whose job is to keep count of all instruments and other medical equipment before, during, and after surgery. Every blood filled sponge is now counted before disposal to make sure that one is not left in a patient.
In Wilkinson, the defendant moved to dismiss under what is known as a 12(b)(6) motion for failure to state a claim for which relief can be granted. This type of motion generally must be filed at the first opportunity. This normally means that the defendant will file the motion in response to the complaint. If you do not file the motion at the first available opportunity, you are said to have waived your right to file this motion. Here, the plaintiff argued that, since the defendant participated in pre-trial mediation before filing the motion, the defendant had waived any rights to this type of dismissal. The trial court granted the defendant’s motion and dismissed the case.
On appeal, the court reasoned that the plaintiff had properly filed a NOI that was sufficient to put the defendant on notice.
If you are injured in an accident in Boston, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
Wilkinson v. East Cooper Community Hospital, July 23, 2014, South Carolina Supreme Court
More Blog Entries:
Massachusetts SJC Allows Medical Malpractice Claim to Proceed, May 21, 2014, Boston Personal Injury Attorney Blog