By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
News: In March 2017, a woman died from complications related to a colonoscopy and polypectomy. She experienced significant blood loss after the procedure and sought treatment at a medical center. Although the patient needed a blood transfusion, the medical center required an order from the gastroenterology practice. That order was denied until a physician from the practice could physically examine the patient. The patient died before the examination could be performed.
In March 2018, the patient’s husband filed a complaint for medical malpractice and wrongful death. He voluntarily dismissed the action without prejudice in 2021, then refiled in 2022. This refiling was within one year of the voluntary dismissal, but more than four years after the patient’s death. The defendants moved to dismiss because the refiling was outside the four-year statute of repose. The dismissal was upheld.
Background: In March 2017, a physician at a gastroenterology practice performed a colonoscopy and polypectomy on a patient. The patient subsequently experienced rectal bleeding and significant blood loss. She sought treatment at a medical center. Although the patient needed a blood transfusion, the medical center would not perform the procedure without an order from the gastroenterology practice. An associate physician of the practice denied the request for a transfusion until he could physically examine the patient. The patient suffered cardiac arrest and died before the examination could be performed.
A year later, in March 2018, the patient’s husband filed a complaint for medical malpractice and wrongful death. He voluntarily dismissed the action without prejudice on Jan. 27, 2021. He then refiled the case on Jan. 20, 2022, within one year of the voluntary dismissal, but more than four years after the patient’s death.
The defendants filed a motion to dismiss, contending the complaint was filed too late because it was outside the four-year statute of repose. Their motion did not differentiate between the medical malpractice claim and the wrongful death claims. Instead, they argued both should be dismissed because both were based on medical claims.
The trial court agreed with defendants. On appeal, the husband argued the one-year savings statute should be applied to the medical malpractice claim; therefore, the claim was filed within the deadline. (Generally, savings statutes protect plaintiffs who dismiss their case for procedural reasons and then refile within one year.) However, the appellate court disagreed. It held the statute of repose only allowed limited exceptions, none of which were applicable to the husband’s malpractice claim. Because the claim did not meet one of the exceptions, the savings statute was inapplicable, and the claim was refiled too late.
The plaintiff also argued the wrongful death claims were not subject to the statute of repose because they were not medical malpractice claims; therefore, the original wrongful death claim was brought within the deadline, the refiled suit was brought within the one-year savings statute, and the statute of repose was irrelevant. The appellate court disagreed, holding the statute of repose was broad enough to encompass the wrongful death claims as well. In particular, the statute applied to “any claim … that arises out of the medical diagnosis, care, or treatment of any person.” Consequently, the plaintiff’s wrongful death claims were dismissed, too.
What this means to you: On the substantive medical side, the obvious negligence inflicted on the patient by both a healthcare facility and physicians must be addressed first. Any patient who is bleeding on presentation to a medical facility is not turned away. If an independent practitioner assesses the need for a blood transfusion — and the criteria are quite specific — the physician has a duty to provide that to the patient. The only acceptable exceptions would be if the patient refuses or the facility cannot provide a blood product compatible with the patient’s blood type. In that case, the facility is obligated to transfer the patient to a facility that can provide that blood type. There are routine tests that indicate blood loss in addition to specific clinical signs, such as low blood pressure and high pulse rate. This patient exhibited those symptoms, which is why a blood transfusion was indicated. A courtesy phone call to the gastroenterologist would not be unusual, but discharging her based on an opinion of a practitioner who has not assessed the patient is negligent and unconscionable.
This case also illustrates the legal interplay between three timing rules and is a strong example of how a state’s application of those rules can drastically affect a case. The first timing rule is a statute of repose. Generally, this statute limits the time a suit can be filed to a period starting when the defendant harms the plaintiff. Its purpose is to give defendants certainty with respect to the time within which a claim can be filed (and a deadline beyond which they need not fear litigation). Not every cause of action carries a statute of repose. Further, states may legislate different statutes of repose from each other. Here, the statute of repose for malpractice claims was four years. The husband’s initial filing was within the statute of repose.
The second timing rule is a statute of limitations. This statute limits the time a suit can be filed to a period starting when the plaintiff discovers, or should have discovered, the injury. Thus, the statute of limitations protects defendants from dilatory plaintiffs, but does not provide a firm cutoff for when defendants will be safe from litigation. The lengths of statutes of limitations vary depending on causes of actions and among the states. Here, the statute of limitations for wrongful death claims was two years.
The third timing rule is the savings statute. This statute allows a plaintiff to refile a case that was dismissed for procedural reasons within one year. This statute has tremendous variability between the states in terms of length, breadth, exceptions, and if the state even has a savings statute. Here, the savings statute was one year, but it did not count as one of the exceptions to the statute of repose.
The result in this case likely would have been different in another state because of the differences between the written statutes or their interpretation. For example, the court interpreted the statute of repose as a “true” statute of repose that only allowed specific exceptions directly written into the statute. However, the court could have interpreted the savings statute as a rule of general applicability because it applied to “any action.” Under that interpretation, the husband’s refiled case would have been timely. Or if the statute of repose had specifically identified the savings statute as an exception, then the case could have been timely. Similarly, if the savings statute had explicitly stated it applied generally, even over the statute of repose, the results could have been different.
Finally, because there is so much variability among the states’ savings statutes, it is probable that in many states, the husband would not even attempt a savings statute argument (or more likely, would not have dismissed and refiled in the first place). All these technical deadline issues can be tricky, and it is important to coordinate with knowledgeable counsel in the applicable jurisdiction to ensure they are applied correctly.
REFERENCE
- Decided March 27, 2023, in the Twelfth Appellate District of Ohio, Case Number CA2022-05-027.
On the substantive medical side, the obvious negligence inflicted on the patient by both a healthcare facility and physicians must be addressed first. This case also illustrates the legal interplay between three timing rules and is a strong example of how a state’s application of those rules can drastically affect a case.
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