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Cancer misdiagnosis case shows how statute of limitations works in Texas medical malpractice claims

When the date of negligence is known, that's when statute of limitations starts running

One of the most important pieces of information we collect when a potential new medical malpractice client contacts Painter Law Firm is the date when the care at issue took place. This knowledge is critical for an analysis under the statute of limitations.

Generally, every state has statutes of limitation for tort causes of action, including claims of negligence for medical malpractice. In Texas, the general statute of limitations is two years. In many situations, though, the statute of limitations date may differ:

• When the plaintiff is a minor (less than 18 years old).

• When the plaintiff is incapacitated.

• When the negligence wouldn’t be obvious to a reasonably prudent person (discovery rule). We’ve successfully argued for a longer statute of limitations period in cases where there was a retained sponge or towel after surgery, for example.

• When the date of the negligence isn’t obvious (continuing treatment doctrine). This may apply, for example, when a nursing home resident/patient developed a bedsore or pressure injury sometime during a lengthy stay.

A recent opinion entered by the Fort Worth Court of Appeals addresses the statute of limitations question in a cancer misdiagnosis medical malpractice case. The case is styled Pignano v. Cash; No. 02-21-00168-CV, In the Fort Worth Court of Appeals. You can read the opinion.

The plaintiffs alleged that the defendant physician, a pulmonologist, failed to make a timely diagnosis of a cancerous mass in the patient’s lungs by failing to:

• Correctly interpret chest CT scans.

• Recognize the significance of the continuing presence of a lung mass.

• Refer the patient for a biopsy (surgically taking a sample of the lung mass for study under a microscope).

• Informed the patient that the lung mass continued to be present.

Their lawsuit petition also claimed that the delayed diagnosis allowed the cancer to progress and metastasize (spread), which led to a debilitating treatment and lowered his life expectancy. The plaintiffs allege that if the pulmonologist had referred the patient for a needle biopsy, then the tumor would not have extended past its margins or metastasized to lymph nodes, and it could’ve been surgically cut out without the need for chemotherapy.

According to the plaintiffs and their medical expert, the care at issue occurred in November 2014. The plaintiffs did not file a lawsuit, though, until April 2018. That readily shows that a lawsuit was filed over three years after the alleged negligence. As discussed above, Texas law has a general two-year statute of limitations for negligence cases, including medical malpractice.

After the lawsuit proceeded at the trial court level in which the plaintiffs’ medical expert was deposed, the defendant physician filed a motion for summary judgment. A motion for summary judgment is a procedural vehicle one party can ask the court to enter a final judgment because there is no issue of material fact, meaning that the court can make a decision as a matter of law. Here, the defense motion focused on the statute of limitations.

After considering the evidence, the trial court granted the motion for summary judgment, resulting in the dismissal of the case. The plaintiffs appealed.

In upholding the trial court’s granting of summary judgment for the defendant, the appellate court noted that when there is an ascertainable date when the departures from the standard of care occurred, the statute of limitations runs from that date. In other words, when there is evidence of the precise time that negligence occurred, that’s when the limitation clock starts ticking. (By the way, this fact is also why we spend so much time on intake trying to understand the timeline of when everything occurred).

The appellate court also restated Texas Supreme Court precedent that’s useful to keep in mind. Shah v. Moss, 67 S.W.3d 86, 841 (Tex. 2001). Although the Texas Medical Liability Act contemplates three alternative dates on which the statute of limitations may begin:

• A plaintiff may not choose the most favorable date that falls within [the] three categories.

• If the date of the alleged negligence is ascertainable (known), then limitations must begin on that date.

• If the date of the alleged negligence is ascertainable (known), then there’s no need to consider the other categories.

Even when there is a course of treatment involved, if the defendant committed the alleged negligence on an ascertainable date, that’s the date when limitations begins to run.

The court also noted that it has previously discussed how the failure to diagnose cancer, ruling that when there’s a known date on which the failure to diagnose occurred, that’s the relevant one for statute of limitations purposes. Gilbert v. Bartel, 144 S.W.3d 136, 143 (Tex. App.—Fort Worth 2004, pet. denied).

It’s also not possible to skirt around the limitations by arguing a failure to treat, as an alternative to failure to diagnose. The court noted that while “the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment.” Rowntree v. Hunsucker, 833 S.W.2d 103, 105–06 (Tex. 1992).

On this basis, the appellate court upheld the trial court’s motion for summary judgment in favor of the defendant doctor.

This case shows the twists and whirls of analyzing the statute of limitations in a complex Texas medical malpractice case. If you’ve been seriously injured by a physician, hospital, or health care in Texas, then contact a top-rated, experienced Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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