The state of North Carolina recognizes the importance of timely filing a medical malpractice lawsuit to recover for damages. North Carolina General Statute 1-15 holds that one has just three years from the date a medical mistake was made to file a claim against a health care provider. However, one has up to two years from the date the mistake was discovered (up to four years) if there was no way to have immediately discovered the injury. In claims that involve objects left inside one’s body during surgery, plaintiff may have one year from the date of discovery and up to 10 years from the date of the surgery to file the claim. Those who were children at the time of a medical malpractice injury have up to their 19th birthday to file a claim for injuries sustained when they were minors.
This “discovery rule” allows patients some leeway when they aren’t immediately aware that some medical negligence has occurred. Often, the question of when a plaintiff knew or had enough information to raise the issue is a factual determination and it will dictate how much time a person has to file the claim.
In the recent case of Moon v. Rhode, the Illinois Supreme Court was asked to consider a case where the discovery rule was central. Plaintiff, executor of his mother’s estate, alleged his 90-year-old mother received improper care when she was hospitalized for rectal prolapse. During her period of hospitalization, she suffered a host of complications and ultimately died. That was in May 2009. In April 2011, after asking a medical consulting firm to review his mother’s medical records, he received an opinion that the doctors were negligent in treating her following her admission to the hospital. A written report submitted by the firm soon after was critical of delayed oxygen treatments and infection control. In May 2011, plaintiff filed a complaint against the doctors, alleging they had failed to timely treat his mother’s pneumonia and respiratory distress.
Then in February 2013, decedent’s CT scans from 2009 were reviewed at plaintiff’s request by another doctor. Days later, the doctor issued a report stating the treating physicians failed to identify a large collection of fluid in her lungs that a well-qualified radiologist and/or physician would have identified. He also opined this failure contributed to decedent’s death. Plaintiff responded by soon thereafter filing a medical malpractice lawsuit alleging wrongful death.
Defendants moved to dismiss the wrongful death action on grounds it was time-barred because it was filed more than two years after decedent’s passing (per the Illinois law) and decedent’s son had enough information on which to base his complaint more than two years before he actually filed. That would mean even if the discovery rule was applicable, the complaint was still untimely filed.
Trial court granted defense motion and dismissed, and a divided appellate court affirmed. A dissenting justice wrote that that a reasonable trier of fact could find plaintiff didn’t have enough information until May 2011 to know his mother’s death (not just illness) was caused by defendants. In that case, the claim was timely filed within two years.
On review, the Illinois Supreme Court reversed, siding with that dissenting justice. The court ruled plaintiff filed his complaint less than two years after receiving the first medical expert report – and the complaint was still filed within the final, four-year deadline (statute of repose).
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Moon v. Rhode, Sept. 22, 2016, Illinois Supreme Court
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