Is there any way around the 3 year statute of limitations if discovery wasn't until four and a half years after surgery?

Asked over 1 year ago - Las Vegas, NV

I was continually treated by 2 doctors for a recurring severe abscess at the surgical site for all this time (the abscess occurred every 3 or 4 months). I only found out within the last month that I've been harboring a staff infection near one of the screws. It doesn't seem fair that an ongoing problem that hasn't been treated properly (no testing of discharge or referral to infectious disease specialist) should be limited to 3 years and, after that, you're out of luck.

Attorney answers (5)

  1. Richard S. Johnson

    Pro

    Contributor Level 15

    4

    Lawyers agree

    Answered . Unfortunately, the answer to your question is most likely "No."

    The three year statute is really a statute of repose. NRS 41A.097 provides:
    2.  Except as otherwise provided in subsection 3, an action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:

    (a) Injury to or the wrongful death of a person occurring on or after October 1, 2002, based upon alleged professional negligence of the provider of health care;

    (b) Injury to or the wrongful death of a person occurring on or after October 1, 2002, from professional services rendered without consent; or

    (c) Injury to or the wrongful death of a person occurring on or after October 1, 2002, from error or omission in practice by the provider of health care.

    3.  This time limitation is tolled for any period during which the provider of health care has concealed any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known to the provider of health care.

    Typically, if a Complaint is filed more than 3 years after the injury-producing event, it is dismissed without much investigation by the Court. There would have to be some undisputable evidence that the medical provider concealed information.

    If you would like a free consultation, call me at 702-823-3333. www.naimidilbeck.com
  2. Christian K. Lassen II

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . State laws vary significantly. Use Avvo's "find a lawyer" tool to locate a Nevada malpractice lawyer.

  3. Marc Edward Stewart

    Contributor Level 16

    2

    Lawyers agree

    Answered . Your question is a good one but the answer will be very, very specific to your state. State law governs this. To my knowledge, there aren't any medical malpractice attorneys that regularly answer questions on Avvo. If I were you, I would use Avvo's lawyer locator to find a medical negligence firm somewhere near you. Place a call and pose this question. Many states have a so-called "discovery rule." How it is applied varies dramatically from state-to-state. It depends on past cases that went up on appellate justices chose to rule on it.

  4. David Ian Schoen

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . I don't know about Nevada, but in some states if the same doctors treated you continuously for the same condition, then the statute does not begin to run until you stop treatment. You may be in luck. Contact a local medical malpractice attorney for advice.

  5. Matthew C Simon

    Pro

    Contributor Level 18

    1

    Lawyer agrees

    Answered . There is an exception called the "discovery rule" which applies to some medical malpractice situations. Seek a consult with an experienced personal injury attorney in your area ASAP who handles medical malpractice cases. Good luck.

    The above is general information only and is not legal advice. The information provided does not form an attorney-... more

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