Saved by the Statute of Limitations – Clinical Advisor

Ms J is a 38-year-old family nurse practitioner who had been working at a large medical center for approximately 5 years. Although she usually enjoyed her work, the pressure to get patients in and out of the office quickly was often challenging. Some patients needed more time in the examination room or had difficulty expressing their medical problems, and she hated to rush through the visit.

In late February, a new patient came to see Ms J. Mrs H was a 72-year-old widow who was seeking treatment for multiple complaints, including pain and swelling in her left ankle. I was walking down my front stairs and I twisted my ankle. I dont know how it happened, but now it hurts when I walk, complained Mrs H.

Ms J examined the patient and recommended that she have radiographs taken, but Mrs H didnt want any imaging at the time. Id rather just wait and see if it gets better, she said. I dont want extra radiation if I dont need it.

The patient returned 2 weeks later and repeated her complaint about her left ankle. This time Ms J was able to convince the patient to undergo radiographic imaging, which demonstrated no definite acute fracture or dislocation present.

Four months later, Mrs H returned to see Ms J. I cant believe this happened again! said the patient. I was walking down the stairs about 5 days ago and my ankle gave out the same ankle as last time and now its swollen and hurts again, and Im having trouble getting around.

Ms J referred the patient again to radiology for a radiograph of her lower leg. Two radiologists interpreted the images. The first noted soft tissue swelling around Mrs Hs ankle but stated that no fracture was identified. The second radiologists report also noted soft tissue swelling and similarly stated that no acute fracture or dislocation was observed.

One week later, now in late July, Mrs H returned to the medical center complaining about left ankle pain. At this point, Ms J suggested that the patient undergo magnetic resonance imaging (MRI), but the patient refused.

Ms J next saw the patient one month later. On this occasion, the nurse practitioner recommended referral to an orthopedic specialist as well as MRI for the unresolved ankle condition. The patient refused both of Ms Js suggestions. Ms J was now feeling quite frustrated, but she understood that she could not force a patient to take a referral or to undergo a test.

At a visit after the Labor Day weekend holiday, Mrs H finally agreed to a referral to a radiologist for MRI. The radiologists report contained no mention of a fracture or dislocation but noted the presence of extensive edema, arthritis, and erosive changes throughout the joints of the ankle and midfoot.

Ms J referred the patient to Dr B, an orthopedic specialist at a sports medicine clinic. Mrs H saw Dr B in late September, at which time he ordered additional radiographs. The physicians notes indicated that the images showed that Mrs H had posterior tibial tendon dysfunction with a fibular stress fracture, healing.

Dr B spoke to the patient about the diagnosis and a treatment plan, which involved placing a cast and brace on the patients ankle. If the cast and brace failed to control the injury, Dr B told the patient that she would derive long-term benefit from a tibiotalocalcaneal arthrodesis.

By late November/early December it became clear that the cast and brace were not working to control the patients injury, and surgery was recommended. Mrs H underwent surgery in mid-January, nearly one year following her initial presentation.

The patient was unhappy with having to undergo surgery and eventually sought the counsel of a plaintiffs attorney. The attorney took the case, and in October of the subsequent year (more than 2.5 years after Mrs Hs first presentation) served Ms J and her employer, the medical center, with a notice of claim informing them that Mrs H intended to pursue a medical malpractice claim against them. Two months later, the malpractice claim was filed.

Ms J met with the defense attorney provided by the medical center. After reviewing the notes, the defense attorney made a motion to dismiss the case on the grounds that the statute of limitations period had run out on Mrs Hs claim. The court agreed and entered an order finding that the statute of limitations began to run on [date in September in the year when she first reported her injury], when Mrs H became aware of her injury. Concluding that the statute of limitations period, which is 2 years in the state where Ms J practiced, had expired by the time Mrs H filed her claim, the court dismissed the case. Mrs H immediately appealed.

From the March 2020 Issue of Clinical Advisor

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Saved by the Statute of Limitations - Clinical Advisor