Suspicion

When should patients reasonably suspect that their doctor's treatment has fallen below the standard of care? From the doctor's perspective, how long do they have to worry?

Since Acupuncture Today reaches doctors all over the United States, I would be remiss in providing specific statute of limitations deadlines, since they invariably differ from one locale to another. The common theme of these time limits, however, is typically constant. A personal injury claim for medical malpractice begins to run when the plaintiff suspected or should have suspected wrongdoing.

To illustrate, let us look at the case of Norgard v. Upjohn, which was decided by the California Supreme Court last August. The case concerned the death of Kristi Norgard McBride, who committed suicide in 1985 by overdosing on prescription drugs made by Upjohn. The warning on Upjohn's product, Halcion, stated that the medication could intensify depression. Kristi had been previously diagnosed with depression and had attempted suicide twice.

Six years after Kristi's death, her suspicious father sued Upjohn for fraud and wrongful death, asserting that Halcion was not accompanied by appropriate warnings, was "unreasonably dangerous" in high doses, and had caused his daughter to kill herself.

Upjohn resisted on statute of limitations grounds to the effect that the plaintiff suspected or had reason to suspect grounds for a suit against Upjohn. The Court of Appeals indicated that because the father only suspected a case against the treating doctor, it did not bar claims against Upjohn.

The Supreme Court of California reversed and indicated initially that the death of an individual is typically the start date for wrongful death claims. The distinction above was dismissed, as the Court specified that at a much earlier date, the father suspected someone other than his daughter was responsible for her death. Even though he had not surmised the case would fall against Upjohn, the fact that he reasonably suspected the case existed against someone was enough to start the clock running. Since California's three-year deadline had long since run out before the suit was initiated, the action was time barred.

While a claim that treatment by an acupuncturist fell below the standard of care would be far different than the above scenario, the same rules would seem to apply. The Supreme Court of California (and many other states as well) has made it clear that as soon as plaintiffs have (or should have) suspicions that they may have a cause of action, the statute of limitations begins to run.

The lesson to be learned is that if you have a patient you suspect may have cause to state a claim, disclose the potential claim to your errors and omissions carrier immediately and calendar the appropriate time limit for the state in which you practice. When the time deadline passes, you will then be able to breathe a sigh of relief.