Identifying “Injury Notice”

 Chapman v. Murray, 2015 WL 510444 (Ky.App. 2015)

This unpublished opinion of the Court of Appeals of Kentucky illustrates the right way of identifying the “injury notice” that marks the beginning of the limitations period for medical malpractice suits.

The plaintiff underwent two surgical procedures for removing neuromas from his left foot and developed inexplicably unceasing pain. He thought that he had a foreign object inside his foot, but his doctor diagnosed him with a possible infection and prescribed antibiotics. The antibiotics did not ease the plaintiff’s pain and he sought a second opinion. The plaintiff’s new doctor found foreign material in his foot and surgically removed it. This procedure improved the plaintiff’s condition, but his foot remained permanently damaged.

Under Kentucky law, medical malpractice suits must be filed within one year from the time the plaintiff knew or should have known that the defendant caused her injury. In the case at bar, the plaintiff filed his complaint on January 30, 2013, on the theory that his cause of action accrued on January 31, 2012, when the second doctor discovered the foreign material in his foot. He argued that prior to January 31, 2012, he merely suspected – but did not know – that he had foreign material in his foot. For that reason, he allowed the defendant to work on his pain problem in the hopes that she will fix it.

The court agreed with the plaintiff and the proffered distinction between “suspicion” and “knowledge.” This decision relied on the precedent laid down by the Kentucky Supreme Court in Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 713 (Ky. 2000) (“[The plaintiff’s] cause of action did not accrue until the fact of her injury became objectively ascertainable. A legally recognizable injury does not exist until the plaintiff discovers the defendant’s wrongful conduct. Because [the plaintiff’s] injury was not readily apparent until the discovery of the piece of uterine probe, she was unaware that she had a viable claim for medical malpractice. A mere suspicion of injury due to medically unexplainable pain following an invasive surgery does not equate to discovery of medical negligence.”).

The court also quoted Harrison v. Valentini, 184 S.W.3d 521, 525 (Ky. 2005), for the proposition that “we should not construe the statute of limitations in a way that would create pressure on plaintiffs to file lawsuits hastily so as to potentially undermine the patient-doctor relationship.” This rationalization aligns with the “continuous treatment” exception to the statute of limitations. See Nobles v. Memorial Hosp. of Laramie County, 2013 WL 2303241 (Wyo. 2013); Cefaratti v. Aranow, — A.3d — (Conn.App. 2014); and my analysis of these cases here and here.

Bottom line: courts should interpret statutes of limitations not only as a mechanism that prevents the filing on stale lawsuits, but also in a way that does not encourage plaintiffs to sue prematurely.