Ep – 22 Suing for Medical Malpractice After Two Years
Old X-ray Films Show the Tumor Was Missed Four years ago, Can I Still Sue?
I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.
Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.
Today’s question comes from a listener who says “My doctor just did surgery and removed a tumor, when he looked at old x-ray films, he saw the same tumor on a film dated four years ago, that an earlier doctor completely missed, can I sue?”
Well, this caller luckily had a situation where the tumor was finally found. But she went on to explain how she suffered tremendously over the four years during which the condition went undiagnosed. The suffering included massive headaches, dizziness, pain, and loss of balance.
She was very shocked when she found that a radiology film taken four years ago actually showed the tumor, but the radiologist completely missed it. The radiology report diagnosed no abnormalities. The caller had even gone to two other physicians, who in reliance on the radiology report that missed the tumor, made her go through other testing to investigate what was causing the pain since they too thought the radiology film as noted in the radiology report she had, showed no abnormalities.
Finally, a third doctor she went to ordered another radiology study and found a very large tumor after she had an MRI.
Once he removed the tumor, he decided to look at the CT scan film of four years ago and what the new doctor found made him furious. The tumor was clearly visible in the old film. If the radiologist four years ago had paid attention the tumor was clearly visible and he absolutely should have noted.
So, does a radiologist making a mistake in reading a film constitute malpractice or substandard care? Most of the time yes.
Though it is difficult to read radiology studies such as a CT scan or x-rays or MRI films, a radiologist is paid to use his or her best skills to read the films to see if there’s anything actually visible in the image.
In this instance either the radiologist didn’t actually look at the film, or just totally missed what was visible. Such lack of care usually amounts to substandard medical care and usually justifies a lawsuit.
But the real issue raised by the caller is that this medical error took place four years ago. Why? Because the statute of limitations for suing for malpractice is two years in Indiana, except in cases involving children under age 6 who have additional time to sue.
So, the time to sue had technically expired by the time the tumor was found and removed.
But there’s a little-known exception that’s been carved out by the courts to the two-year rule, and that is if the malpractice could not have been discovered within the two years, and was not discovered within the two years, a court will take a look at the issue and allow a person to proceed with a lawsuit, if the court believes that it was not reasonable for the person to be expected to know that malpractice occurred.
Sometimes this situation happens if a person has a surgery and the doctor mistakenly leaves a sponge or clamp inside the patient, and nobody knows about it until years later.
But in this caller’s case, where a report is written showing that everything is normal on the film, when in fact looking at it again, it’s very clear that the film was misread, it definitely justifies seeking out an attorney to go over all the facts and help decide if there is justification for filing a lawsuit even though the two years to sue has expired.
I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.