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When should I file a medical malpractice case?

medmalnurses4.jpgOhio, like every other state, gives patients who were wronged because of medical negligence a limited amount of time to file a malpractice case. Each state has its own time requirements; In Ohio you have one year to file a medical malpractice case, and that one year tolls from when the malpractice occurred or when you discovered or should have discovered the malpractice. It is one year for medical malpractice and two years for wrongful death (though if the wrongful death is from malpractice the survivorship claim must be filed in one year). The statute of repose is four years which means no matter when you discover the malpractice, if it is outside of four years you are barred. 

But when does the four-year time period start? A case before the Ohio Supreme Court could resolve when the four-year window applies.

Case involving Cleveland Clinic may shed some light

A commercial pilot sued the Cleveland Clinic, charging that doctors there botched his prostate surgery, leaving him incontinent and impotent and unable to continue flying. The man and his wife first filed the lawsuit in 2010 and then dropped it in 2011. They have filed other cases, including one this year that is now before the Ohio Supreme Court. The clinic has denied any wrongdoing, stating that the outcomes experienced by the pilot were known risks of the prostectomy.

It also said that his window of opportunity to file a medical malpractice claim has expired because Ohio law provides for only four years. The plaintiff says that the clinic refused to provide requested medical records and other discovery items. This, according to the plaintiff, created expensive delays that unduly lengthened the process of obtaining discovery. The delay, according to the plaintif, was notvoluntary, but engineered by the clinic.

The clinic admits it withheld information from the patient because he had threatened to sue. However, it corrected some of its processes after the man filed a regulatory complaint with the Centers for Medicare and Medicaid Services (CMS). It also agreed to make the man's file available to CMS.

Other issues in the complaints filed include whether the surgeon who performed the surgery was actually the person that the patient expected to do the surgery. Additionally, the plaintiff charged that the surgeon was performing concurrent surgeries, a common practice in large hospitals that allow doctors to oversee two operating rooms at a time. The hospital denies that this was the case.

Ohio Supreme Court will review case

When it reopened the original malpractice case in Cuyahoga County, the court threw out the new case because the four-year limit had expired. That decision was overturned by a state appeals court, which argued that the plaintiff could proceed with the case because he had recognized within the four-year period that he had been injured as the result of medical malpractice. The Cleveland Clinic asked the Ohio Supreme Court to review that decision. The court agreed to take up the case in September.

Making thing more complex is the plaintiff's allegation that two of the court's justices may have a conflict of interest. He claims they were beneficiaries of a fundraiser co-hosted by one of the clinic's lawyers and the Ohio Academy of Medicine, which has filed a brief arguing for the Cleveland Clinic's position.

Although there have been many steps along the road to the Ohio Supreme Court, the critical question that the justices must decide is whether the appeals court was correct in saying that the plaintiff had the right to reopen the lawsuit because he had realized within the four-year limit that he had been injured.

However, interested parties will need to wait until much later in the year to learn what the court decides.

Source:http://www.cleveland.com/healthfit/index.ssf/2015/12/ohio_supreme_court_to_decide_f.html

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