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  • Writer's pictureDavid N. Damick

Two Cases You Know Nothing About that Will Affect How Your Doctor Treats Your Family: Part II

The Missouri Supreme Court is deciding two completely different cases that may mean you cannot sue even when everyone knows your medical provider was negligent (Supreme Court Weighs Who and When in Medical Malpractice Suits). The first is a case claiming that medical providers who are employed by the State should have immunity for anything, unless they break a specific law telling them exactly what they should have done, which we discussed in a previous post (LINK TO PREVIOUS POST HERE); the second is a case where the patient didn’t even know that their surgeon left chunks of wood in their knee until they saw another doctor who told them. This post discusses the second case.

The case in question revolves around patient Dane Templeton, who injured his knee in a golf cart accident in 2012. He was treated and underwent four surgeries over the next four years, but continued to suffer pain, swelling and periodic infections in his thigh. Templeton eventually got a second opinion from a different surgeon, who removed two pieces of wood from Templeton’s thigh that his original doctor allegedly had missed in all his prior treatments. However, by the time this was discovered, and Templeton decided to sue, the statute of limitations had expired.

The case before the Supreme Court is, in a sense, a very common situation that many victims of medical malpractice face. It is a simple fact that we all feel we must trust our doctors. When our doctors keep trying different things and our condition gets worse, or at least not better, we almost never “show disloyalty” by going to another provider for a second opinion. In all fairness, because of insurance restrictions, there aren’t too many “second opinion” doctors who you can get to who are not in the same plan as the doctor you are trying to check up on. The delay in seeking second opinions that actually can provide a different approach can kill you. It most certainly destroys the chance to go to court for proper compensation when the delay means that the brief statute of limitations passes by.

The “statute of limitations” for any medical provider who negligently hurts you in Missouri is two years that runs, in general, from the date of the negligent injury. (Medical Malpractice Law in Missouri). This deadline can be extended to run from the last date of treatment when you have a continuing course of care by the negligent doctor for the condition. The fact is that ALL of us will usually give the doctor or hospital we went to a year or two to see if we recover like they say we will, or to give the doctor a chance to fix things. What seems reasonable to us in practice can be deadly to a legal case. In the Templeton case before the Court now, this is again the issue. Templeton hurt his knee in an accident in 2016, and his surgeon tried repeatedly to fix his leg when it would not heal. Templeton liked his doctor. He trusted the medical profession.

When Templeton finally saw a different surgeon, he realized the source of pain was from missed wood fragments stuck in his leg over years. He got an attorney and sued in 2018, which was well within two years of when he learned of the negligence, but was a couple of months past two years from the last time he was treated by the original surgeon. So, even though there is NO claim that the first surgeon wasn’t negligent; and there is NO claim that Templeton should have discovered the fragments in his leg earlier himself, there is NO case because the statute of limitations is supreme.

One other significant factor is at play here:

The State of Missouri is one of a few states that does not have what is called a “discovery rule.” In most states, the statute of limitations starts running on the day the plaintiff “knew or should have known” about the injury and its likely negligent cause, even if you don’t know exactly what went wrong or how bad the injury will be later. The “discovery rule” is a matter of fundamental fairness. It is a balance between giving defendants a good idea of how long their exposure to liability may be, versus a victim’s right to go to court for justice. With few exceptions, in medical negligence actions in Missouri, it does not exist.

There are a number of angles for the Supreme Court to consider on this case, but the one that should be considered as decisive is that a discovery rule truly needs to be put in effect. The Court is not expected to do that, but the arguments before it include whether visiting a “second opinion” doctor ends the first doctor’s responsibilities if the patient is not otherwise released. We will see.

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