Most medical malpractice cases stem from a particular event—a botched surgery or delivery, say. In those cases, figuring out when the statute of limitations should expire is fairly easy. But a failure to misdiagnose a patient with a serious disease is different—the doctor may fail to diagnose the ailment multiple times. In those cases, when should the statute of limitations start? With the first misdiagnosis, or the most recent one?
The South Carolina Court of Appeals, considering the question for the first time, decided May 4 that each alleged misdiagnosis should open up a new six-year window in which a patient can sue for malpractice for that particular mistake. The court concluded that a contrary ruling would let doctors escape liability for acts of negligence simply because they had made the same mistake in the past.
In February 2010, Virginia Marshall was diagnosed with a rare form of blood cancer. Marshall sued the two physicians who had treated her previously, alleging that they committed medical malpractice by failing to diagnose her cancer earlier. Marshall contended that her doctors should have properly diagnosed her as early as 2004, when the doctors detected increased levels of protein in her urine but failed to conduct any further tests.
The physicians moved to have the case dismissed, arguing that the lawsuit fell outside of South Carolina’s statute of repose, which requires that medical malpractice suits be brought within six years of the alleged negligent act. (A statute of repose is like a statute of limitations, but enforced more strictly.) A Charleston County Circuit Court judge agreed, citing a Georgia decision which had interpreted that state’s statute of repose the same way.
The Court of Appeals, however, unanimously reversed the ruling and ruled that Marshall could continue her lawsuit, at least for incidents of alleged malpractice that occurred less than six years before she filed her lawsuit. The court found the Georgia ruling unpersuasive because of differences in the two states’ statutes of repose, and held that South Carolina’s statute of repose was not intended to bar an otherwise valid lawsuit merely because a physician had previously misdiagnosed the condition outside the repose period.
“Under the rule advocated by [the doctors], however, physicians—to be immune from suit—could simply point to a time outside the limitations period when they examined the patient and should have diagnosed the condition,” Judge H. Bruce Williams wrote for the court. “We do not believe the General Assembly intended such a result when it enacted the statute of repose for medical malpractice actions.”
Williams wrote that the court was not adopting the “continuous treatment rule” that had previously been rejected by the state’s Supreme Court. Rather, the statute begins to run at the time of a medical professional’s alleged negligent act or omission, regardless of when the course of treatment ended.
Blake Hewitt and John Nichols of Bluestein Nichols Thompson & Delgado in Columbia, J. Edward Bell of Bell Legal Group in Georgetown and C. Carter Elliott of Elliott & Phelan in Georgetown represented the Marshalls. Hewitt said that a ruling for the defendants would have incentivized the wrong sort of conduct.
“Obviously, you never know how court cases are going to come out, but we really did feel like a straightforward application of South Carolina law, as well as just a plain sense of fairness, pointed quite strongly to a result in our client’s favor,” Hewitt said. “This is not a discrete, isolated single issue of an occurrence of negligence. When someone keeps breaching the standard of care over and over again, you can’t just wait out the clock.”
Hewitt said that this legal issue had been in the background of several other medical malpractice cases that appellate courts had considered, but that the courts had never had to weigh in on the question because this was the first case where the timing worked out just so that the first alleged misdiagnosis occurred outside the six-year window, but later instances fell inside it.
James Hood, Robert Hood, H. Cooper Wilson and Deborah Sheffield of Hood Law Firm in Charleston and Thomas Goldstein of Belk Cobb Infinger & Goldstein in Charleston represented defendant Dr. Kenneth Dodds. James Scott, D. Jay Davis, Perry Buckner, Stephen Brown, and Russell Hines of Young Clement Rivers in Charleston represented defendant Dr. Georgia Roane.
None of the attorneys for the defense returned phone calls seeking comment on the decision.
The 10-page decision is Marshall v. Dodds (Lawyers Weekly No. 011-040-16). The full text of the opinion is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan