On 1994, a Queens man was admitted to a hospital for the treatment of his spinal injuries. Prior to the man’s cervical spine surgery his physician ordered a cervical myelogram and CT scan. The procedure was performed by another physician and a nurse. The man does not recall the whole procedure, but remembers waking up in great pain. The man was advised by his admitting physician, that he obtained dislocation on his shoulder during a grand mal seizure. The man was told that he was suffering from spinal stenosis and diseases of the spine. He was also told that the seizure could have resulted from natural causes and the spinal diseases were normal complications from the myelography procedure.
Subsequently, the man obtained legal counsel and brought a medical negligence action against the doctor who performed the procedure for injuries he received during the cervical myelogram. Afterwards, the physician filed an answer to the complaint and included as an affirmative defense that the man’s damages were caused in whole or in part by third parties. The physician also discussed the risks associated with a myelogram, including the possibility of a seizure. He added that the risk of seizure is decreased when the patient’s head is elevated. He further opined that the nurses may not have followed his postoperative orders concerning the maintenance of the man’s head because when he saw the man during the seizure, the man was lying fairly flat. The man then filed the notice of intent to initiate litigation against the hospital and the nurse. He also modified his complaint to include them as opponents in the lawsuit.
In a request for the dismissal of the case, the hospital and the nurse claimed that the man’s claim for negligence was barred by the law of limitations. They claimed that the man was aware of them as potential opponents immediately following his injuries.
Staten Island trial judge ruled that the man’s injury was of such a nature that a reasonable person would question why it had happened during that type of procedure. The court additionally found that the hospital and the nurse would be within the zone of anticipated targets for a lawsuit. As a result the trial court opined that the man was on notice of his injuries and of the identity of the potential opponents.
The evidence shows that the man did not discover that the hospital and the nurse potentially shared fault in the injuries until when the physician answered the complaint and raised the negligence of other hospital employees as an affirmative defense.
Based on records, the legislative policy underlying the medical malpractice area supports the first decision of the case. In an effort to foster full investigation on the claims, promote pre-suit settlement of claims and prevent the filing of baseless litigation, the legislature enacted the law, which requires a potential complainant to conduct a thorough pre-suit investigation of the medical viability of a malpractice claim.
In the case, the man did begin an immediate investigation. However, the hospital’s and the nurse’s potential responsibility did not come to reveal until the physician answer the complaint and state his deposition. The man brought his claim a little more than a year following receipt of the initial indication of the hospital’s wrongdoing and a mere three months after the information was confirmed in the physician’s deposition. The court believes that the timing complies with the applicable law of limitations. The suit was brought within two years of the time the man first learned of the possible negligence of the hospital and the nurse, and within four years after the incident.
Consequently, the court finds out that trial court erred in granting the decision of dismissal based on the law of limitations and the decision is hereby reversed.
Medical treatment, procedure and surgery help people to heal from their specific disease. Some are invasive and some are not but risk from any medical procedure is inevitable. If you suffered negligence in the hands of your health care providers, you can seek help from the NYC Medical Malpractice Attorney. If an injury is specifically on your spine, you can have the NY Spinal Injury Lawyers or New York City Spine Injury Attorneys at Stephen Bilkis and Associates.