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CA: limitations bars suit for injury in surgery: failure to diagnose PostOp symptoms excepted.

CASE FACTS: In July of 1996, Gordon Wheeler underwent surgery for a chronic sinus problem. A known risk of the surgery, allegedly not explained to the patient, is that "the bony tissue adjacent to the cranium is nudged by surgery instruments so that an aperture will result that allows the flow of cerebral spinal fluid from the cranium." Days after surgery, the patient became aware of dripping from his nose which was different than any dripping he had before surgery. There was an accompanying odor. He also suffered from headaches and dizziness When he complained about the dripping problem to Drs. Dan Castro and Joel Berke, both of whom were involved in the surgery, they gave him medication to irrigate his nostrils. The medication did not help. A CAT Scan and a MRI, were performed on November 18, 1998, and December 22, 1998, respectively. After these procedures were completed, Dr. Berke allegedly "took himself off the case and abandoned plaintiff." On January 7, 1999, the patient met with Dr. Castro, who "did not say anything ... about the CAT scan or MRI." The symptoms continued. The patient was hospitalized for a seizure. He received treatment from medical personnel other than the defendants. "Tests and examinations disclosed that the seizure resulted from brain activity at the frontal part of the cranium ... The treating physicians opined that the seizure resulted from brain matter that had found its way through an aperture ... between the bone at the top of the nasal passage and the cranium ..." After successful corrective surgery, the patient brought suit against Drs. Castro and Berke alleging fraud and/or deceit, medical malpractice, and loss of consortium. The Superior Court, Los Angeles County, dismissed the case. The patient appealed.

COURT'S OPINION: The Court of Appeal of California affirmed the order of the lower court as to the cause of action for fraud and/or deceit. However, the court ordered the trial court to vacate its order on the causes of action for medical malpractice and loss of consortium. The court held, inter alia, that in a suit for personal injury or medical malpractice, suit must be brought within three years after the date of injury or one year after a patient discovers, or should have discovered an injury, whichever occurs first. Although the court recognized that the patient was aware of the symptoms immediately after surgery, it was not that injury which was the subject of all of the plaintiffs causes of action. Nowhere did the patient allege that the defendants were negligent in poking a hole in his cranium. Rather, he maintained that they were negligent in failing to diagnose the cause of his postsurgical symptoms. Wheeler v. Castro, 2003 WL 22765323-CA

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I. firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievement as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.
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Title Annotation:Medical Malpractice Cases
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Nov 1, 2003
Previous Article:ME: ER Dr. had 'no independent recollection': cause of injury shown on history ruled admissible.
Next Article:$10 million award pared down by damage cap.

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