The complainant Nassau man went to the emergency room of a hospital complaining of weakness in his lower extremities and severe lower back pain. He had gone to the emergency room five days earlier complaining of left hip and back pain, and was sent home with pain medication. The pain persisted, and he began experiencing weakness in his legs, twice falling or nearly falling when his legs buckled. He was able to walk, though with difficulty. During his emergency room visit, radiographic tests, including a myelogram, were ordered, and the man was admitted to the hospital.
On the morning of 25 June 1994, the accused anesthesiologist explained to the complainant man that he would need to administer a caudal block rather than general anesthesia for the myelogram because the man needed to be awake during the test. The radiologist performed the myelogram around 3:00 p.m. that day. The next morning, the man discovered he felt no pain, was numb from his hips down, and could not move his legs. The Suffolk anesthesiologist and the nursing staff blamed the numbness and inability to move on the anesthesia, telling the man it had not yet worn off. The man thought this was strange because, in his experience, it usually took only four to five hours for the effects of anesthesia to wear off. He thought either something had gone wrong or his condition was worse than the doctors originally thought.
The myelogram revealed massive disc herniation causing spinal injury, and the accused man’s attending physician and neurologist advised the man that he urgently needed surgery. The neurologist performed a laminectomy and discectomy. However, the man remained paralyzed following the surgery.
He was discharged from the hospital on 1 July 1994 and had six subsequent office visits with the neurologist. On 3 August 1994, the man visited another doctor complaining of left shoulder pain. The doctor’s notes from that initial visit state that the man had back surgery about five weeks ago. He is paralyzed from the waist down. He states that he is paralyzed from a myelogram.
On 8 June 1995, the man served the neurologist with a notice of intent to initiate medical malpractice litigation and subsequently filed suit on 4 October 1995. The complainant man did not serve the attending physician, the anesthesiologist, the radiologist, and their employers with a notice of intent to initiate litigation until 3 January 1997. On 9 May 1997, he amended the complaint against the neurologist to add the attending physician and the others as accused.
The accused parties moved for summary judgment, arguing that the man served the notice of intent beyond the limitations period, and thus, his action against them is barred. Ruling that the statute of limitations began to run no later than 3 August 1994, the date of the man's visit and statement to his latest doctor, the trial court entered final summary judgment for the accused parties. The court noted that the man's paralysis is the type of injury which should start the limitations period running immediately. The man argues on appeal that the paralysis he suffered after undergoing the myelogram and surgery is not the type of injury which, standing alone, would have indicated that medical negligence possibly had occurred, thereby triggering the statute of limitations. He argues further there was a genuine factual issue regarding whether he told his latest doctor that he had been paralyzed from the myelogram or since the myelogram.
An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.
The nature of the injury, standing alone, may be such that it communicates the possibility of medical negligence, in which event the statute of limitations will immediately begin to run upon discovery of the injury itself. On the other hand, if the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.
The evidence before the trial court showed the man was ambulatory before entering the hospital, though he was experiencing weakness in his legs and severe lumbar back pain. More than twelve hours after undergoing the myelogram, the man discovered he was still numb from his hips down and his legs were paralyzed. Although medical staff told him the numbness and paralysis were caused by the anesthetic which had not worn off, he reasonably suspected something was amiss because, in his experience, anesthetic effects dissipate in four to five hours. The man's paralysis following the myelogram was sufficient to communicate the possibility of medical negligence. Therefore, the two-year statute of limitations began to run on or about 26 June 1994. As such, service of the notice of intent on 3 January 1997 occurred beyond the limitations period, and the man’s medical malpractice action against the accused is barred.