One of the main decisions that a NJ malpractice lawyer must make is whom to sue. A patient who suffered from medical malpractice was likely not just treated by one doctor. Rather, there were probably many other medical providers involved. For example, nurses, other doctors, a hospital, laboratories, etc. All may have contributed to the medical error.
A 2015 appellate case illustrates this. In April 2005, a man we’ll call Lee saw his dermatologist. Lee had a growth on his middle finger. Lee’s skin doctor took a biopsy. The physician sent the biopsy to a lab for analysis. The lab reported that the skin growth was simply a common wart. The doctor treated the growth accordingly.
By the summer of 2008, Lee was still having problems with his middle finger. The doctor took another biopsy. This time, the lab analysis came back as skin cancer. At this point, in order to eradicate the cancer, the doctor had to amputate Lee’s finger.
By 2010, Lee had hired a NJ malpractice lawyer. The attorney notified the doctor that Lee intended to make a claim. In April 2010, the Doctor’s insurance company arranged for a second analysis of the 2005 biopsy. The re-analysis found skin cancer.
In July 2010, the NJ malpractice lawyer sued Lee’s doctor. The NJ malpractice lawyer claimed that the doctor should not have waited three years before taking a second biopsy. It should have been clear to the doctor well before then that the treatment he was administering wasn’t working.
Less than two weeks after the lawsuit was filed, the doctor’s insurance company sent the NJ malpractice lawyer an email. The email stated that the doctor would have treated for skin cancer earlier, had the 2005 lab report on the biopsy indicated that cancer was present.
In November 2011, the NJ malpractice lawyer sued the lab that allegedly misdiagnosed the 2005 biopsy. The lab’s attorney filed a motion to dismiss the claim.
In New Jersey, a victim of medical malpractice has two years to sue. The lab argued that more than two years had passed since the 2005 lab analysis.
NJ MALPRACTICE LAWYER MUST SUE ALL LIABLE MEDICAL PROVIDERS
The NJ malpractice lawyer countered that the law allows the statute of limitations two-year deadline to be extended. Specifically, the deadline can be extended where the victim has no reasonable way of knowing that he was the victim of malpractice. In such a case, the deadline runs from when the victim reasonably should have known that he had been victimized.
Unfortunately for Lee, the trial judge ruled for the lab. The judge ruled that, just as doctor’s insurance company had the biopsy re-analyzed, Lee could have done the same thing. Therefore, Lee had waited too long to sue and his claim against the lab was dismissed. An appeals court upheld the trial judge’s ruling.
I strongly disagree with the ruling. Taken to its logical conclusion, it would mean that whenever a NJ victim of medical malpractice sued an offending doctor, the victim’s NJ malpractice lawyer would have to arrange for all lab tests to be redone. Otherwise, if the physician later blamed the lab test for a misdiagnosis, the NJ malpractice lawyer might already be out of time to sue the lab.
In most cases, automatically redoing all medical tests would just cause needless expense to malpractice victims. Not to mention needless health risks, such as radiation exposure, infection, etc..
The fairer rule would be to give a victim two years to sue the lab from the date that the doctor blames the lab for the misdiagnosis.
The ruling in Lee’s case may be found in Google Scholar.