Old, old, old malpractice advice?
June 28, 2010 8:20 AM   Subscribe

The statute of limitations for medical malpractice in Texas is 10 years. Is there any legal option, then, for a case of gross malpractice that did not become known until nearly 30 years after the fact?

Brief rundown of the case:

Against the advice of physicians B and C, physician A decided to perform a procedure upon a toddler that is usually reserved for teenagers and older.

In completing this procedure, physician A severely damaged the bone growth plates in the patients chest wall. The result of this was that, though there was no complication evident in the short term, as the patient grew, the patient's rib cage did not grow -- essentially, the patient grew into a cage.

This was not discovered until the patient was in their late 20's, presenting extreme fatigue and shortness of breath, and medical imaging showed the cause of the problem: severely stunted rib growth and fusion of sternum, creating the additional complications of essentially destroying through atrophy the medial lobe of the right lung, displaced and enlarged heart, and abnormal curve of the upper spine. Incidentally, the very reason that the procedure carried out by physician A is usually reserved for patients of a certain age is to prevent this same damage to the growth plates.

The net result is that, while a typical adult male can hold 6 liters of air, the patient maintains at around one liter. The patient can not run, can not maintain any degree of activity for more than a few seconds, can not even climb two flights of stairs without their vision going spotty.

It kills me to think that this person has no legal options simply due to the time involved. What can they do?
posted by kaseijin to Law & Government (14 answers total) 1 user marked this as a favorite
Have you consulted with a lawyer? That's the best course of action here.
posted by dfriedman at 8:24 AM on June 28, 2010

What can they do?

Talk to a medical malpractice lawyer barred in the state of Texas with lots of experience.
posted by zizzle at 8:25 AM on June 28, 2010 [1 favorite]

Generally speaking, statute of limitations 'start the clock' at the time that the proposed plaintiff could have started the action. At minimum, that often includes such things as the proposed plaintiff being a child (which could help), and usually means when they found out or should have found out (which would help).

That being said, there are so many exceptions to that general rule that it's not even funny. Consult a lawyer.
posted by Lemurrhea at 8:31 AM on June 28, 2010 [2 favorites]

Call a lawyer.

Statutes of limitation are triggered by a lot of things. Sometimes the trigger is the act that caused the injury, sometimes it's the injury itself, sometimes it's knowledge of the act, sometimes knowledge of the injury. And there are mechanisms by which statutes of limitation are sometimes tolled (i.e., the clock stops running), such as fraud, concealment, and the injured party being a minor.

But no one can tell you if any of those "sometimes" above might apply to your case -- except a lawyer who knows the relevant law in Texas.

If you don't know who to call, call the Texas State Bar Association -- state bar associations often have referral services.
posted by devinemissk at 8:38 AM on June 28, 2010 [1 favorite]

As said above: Talk to a medical malpractice lawyer barred in the state of Texas with lots of experience. There are reasons that statutes may toll. Only an attorney asking the right questions and getting candid answers can determine if any apply in this case. Additionally, only an attorney asking the right questions and getting candid answers can determine whether there is an appropriate basis, outside of medical malpractice or other torts, for a civil law suit.

But sometimes, there simply is no legal redress for something terrible which happened. One can argue about whether or not that's fair, or right, or arbitrary. One can be angry about that. But sometimes, the courts can't help and sometimes, they shouldn't. Talk to a lawyer, but be prepared to hear that there just isn't anything the legal system can do to help. Whether there's something to do to help with that, I don't know.

Statutes of limitations exist for practical and reasonable reasons. 20+ years is a long time: people die; memory is mutable even in the short term; records get lost. 20+ years greatly changes how medicine is practiced and trying to assess something which happened 20+ years ago (even if it would have been egregious all those years ago) from a distance brings a host of complications. Your witnesses and your experts will be working with altered assumptions from completely inapplicable modern contexts. As unfair as what happened was, a trial may not be any more fair. There may not even be an entity or person still in existence whom you could sue.
posted by crush-onastick at 9:49 AM on June 28, 2010 [1 favorite]

Usual disclaimer: I'm not your lawyer, this is not legal advice, I don't practice medical-malpractice law, and I'm not licensed in Texas.

I agree with all of the above that you definitely need to talk with a lawyer. Here are some links that may help:

ABA page on finding legal help in Texas
ABA page on legal referral services in Texas
State Bar of Texas page on legal referral services in Texas

Good luck.
posted by tellumo at 10:31 AM on June 28, 2010 [1 favorite]

Spoke to a lawyer. No way to get around the statute of limitations. Thanks for the answers!
posted by kaseijin at 12:07 PM on June 28, 2010

For clarity's sake: the statute of limitation in Texas for med-mal claims is 2 years. The 10 year limitation is a statute of repose.. The difference is that the statute of limitation is, under certain circumstances, subject to being tolled or deferred, so that you could file suit, say, four years after the alleged wrong. The statute of repose, in contract, isn't subject to these "outs" -- the plaintiff's failure to discover the condition, which might act to extent the statute of limitation, won't extend the statute of repose. If you hit ten years, you're out of luck (as a plaintiff, anyway). It is meant to be a hard 10 year deadline to file a suit even if the statute of limitation had been extended for whatever reason. There was a significant legal challenge to this statute, but the Texas Supreme Court, earlier this year, declined to invalidate the statute. Here, for anyone who's interested: http://www.supreme.courts.state.tx.us/historical/2010/mar/080316.htm
posted by seventyfour at 1:37 PM on June 28, 2010 [2 favorites]

"in contract" = "in contrast."
posted by seventyfour at 1:45 PM on June 28, 2010

Would civil court be an option, then, for this individual?
posted by kaseijin at 2:14 PM on June 28, 2010

I wasn't trying to give legal advice -- I'd defer to the attorney with whom you spoke.
posted by seventyfour at 2:33 PM on June 28, 2010

Civil court is not an option, if the repose period has expired. That's what the statutes of limitation/repose mean.
posted by megatherium at 2:52 PM on June 28, 2010

i know this isn't a first-choice by any standards, and also not quite what you asked, but : is reconstructive surgery able to correct any of this? so at least the debilitating effects could be lessened.
posted by radiosilents at 4:05 PM on June 28, 2010

Alas that it is not.
posted by kaseijin at 5:12 PM on June 28, 2010 [1 favorite]

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