Justices could decide when statute of limitations begins
Posted: Thursday, September 16, 2004 12:00 am
GILLETTE (AP) - The time frame in which someone can file a medical malpractice lawsuit should begin when the medical error is discovered, not when it actually occurs, an attorney for a man suing his doctor told the state Supreme Court.
The court heard oral arguments this week in a case that a lower court dismissed because the lawsuit was filed more than two years after the alleged malpractice occurred, but less than two years from its discovery.
Under Wyoming law, a claim brought against a physician or hospital needs to be filed "within two years of the date of the alleged act, error or omission."
On Jan. 11, 1999, rancher Leon Jauregui had surgery for a torn rotator cuff with his orthopedic specialist Dr. Joseph Oliver at Sweetwater County Memorial Hospital.
On Feb. 26, 1999, Oliver performed a second surgery on Jauregui's shoulder to search for the cause of an infection that persisted after the first surgery. He found a surgical sponge that was left in Jauregui from the initial operation.
Jauregui sued in February 2001.
Jeremy Michaels, attorney for Jauregui, argued that the statute of limitations should run out two years after the malpractice act was discovered because in this case, the surgeon wasn't even aware of the negligence until after the second surgery.
He also contended both the hospital and the physician were subject to the lawsuit because of the continuing treatment, and the potential that a hospital staff member left the sponge.
But attorneys for the doctor and the hospital argued the two-year time limit should start on the date of the malpractice act.
George Powers, who represented the hospital, argued his client was not responsible because between the first and second surgeries, Jauregui was discharged and the "hospital had no further contact."
Oliver's attorney, Kathleen Swanson, said there needs to be a continuous course of negligent treatment, not just treatment, to extend the alleged malpractice beyond when it originally occurred.
Swanson and Powers argued that there are provisions in Wyoming statutes that extend the limitations when a malpractice discovery is made late, but the lawsuit was filed too late to fall even within those limitations
"They had nearly 23 months to file this claim, and they failed to do so because they were focusing on the second surgery," Swanson said. "They just missed the boat on that."
The court will issue an opinion later.