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Failure to diagnose and statutes of limitations

It should never be assumed that patients will prevail in every medical malpractice action. Such lawsuits are complex, and trying such a case often requires an attorney to jump over a number of legal hurdles.

In a neighboring state of Ohio and Kentucky, a lawsuit concerning the failure to diagnose a case of malignant melanoma was dismissed by that state’s Supreme Court because the plaintiffs did not bring a lawsuit within a six-year statute of limitations. The court made this ruling, despite the fact that the woman’s treating dermatologist failed to diagnose the cancer during approximately 10 years of treatment of the woman.

The woman, who later died of her cancer, was treated by the dermatologist from 1996 until 2007 for a number of moles and lesions. On three occasions, the dermatologist evaluated samples without sending such samples on to a pathologist to determine if the moles or lesions were cancerous.

What is uncertain in this matter was whether the plaintiffs were informed that the doctor did not send the samples to a pathologist. The plaintiffs claim that they were not informed of this. On the other hand, the dermatologist claimed it was standard procedure to inform his patients that he conducted such tasks without the aid of a pathologist.

Whether one does or does not agree with such a ruling, this case does demonstrate the need of retaining an attorney with a thorough understanding of how medical malpractice cases are tried. Attorneys can advise clients of all available options, and such attorneys can give such clients an idea as to the odds of whether such a case will or will not be successful.

Source: Des Moines Register, “Husband can’t sue over cancer death,” by Grant Rogers, July 13, 2012

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