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John D. Plummer Successfully Argues Before The Rhode Island Supreme Court That A Plaintiff's Medical Malpractice Action Was Barred By The Statue Of Limitations

Recent case law from the Rhode Island Supreme Court has not been favorable to defendants in medical malpractice actions.  Therefore, I am happy to share with you a Rhode Island Supreme Court decision, favorable to the defense, published recently in a medical malpractice case where I successfully argued a motion for summary judgment in the Superior Court and argued before the Supreme Court, against Deluca & Weizenbaum, on plaintiff's appeal.  The case name is Jose Bustamante, et al. v. Hector R. Oshiro, M.D., et al., Rhode Island Supreme Court No. 2011-242 and No. 2011-245.

The Bustamante case was dismissed in the Superior Court after summary judgment was granted in favor of defendants on a statute of limitations, discovery rule defense.  In Bustamante, after seeking medical treatment for pain in his neck for over a year and a half with a number of Rhode Island physicians, the plaintiff submitted to an MRI and was subsequently informed of a tumor at the base of his neck.  Approximately a week later the tumor was surgically removed and then diagnosed as cancerous.  The plaintiff brought suit more than three years after he was informed of the existence of the tumor but within three years after the tumor was diagnosed as cancerous.  I argued that, under the discovery rule, the three year statute of limitations began to run on date the plaintiff was notified of the existence of the tumor and thus his claim was time barred.  This defense was based upon the objective standard of the discovery rule set forth under R.I.G.L. s. 9-1-14.1(2), which provides that a medical malpractice plaintiff must bring suit within three years from the time that the alleged "act or acts of malpractice should, in the exercise of reasonable diligence, have been discovered."

In response, the plaintiff argued that the statute did not begin to run until the tumor was definitively diagnosed as cancerous.  The plaintiff reasoned that he could not be aware of any malpractice by the defendants until he was fully aware of the complete nature of his injuries.  The Superior Court found in favor of the Defendants and dismissed the case.

Recently, the Rhode Island Supreme Court, in an opinion written by Justice Goldberg, affirmed the decision of the Superior Court that the statute of limitations began to run on the date the plaintiff was notified of the existence of the tumor, and not on the date that the tumor was diagnosed as cancerous.  The Supreme Court found that when the plaintiff was informed of the existence of the tumor in his neck a reasonable person in similar circumstances would have discovered that the alleged wrongful conduct of defendants caused the injuries.  Acknowledging that the tumor was not definitively diagnosed as cancerous until some-time later, the Supreme Court explained that "The discovery rule does not require perfect crystallization of the nature and extent of the injury suffered or a clear-cut anchoring to the allegedly negligent conduct of the defendant."  In sum, the Supreme Court agreed that after seeking treatment for pain in his neck for over a year and a half, the plaintiff should have been aware of possible negligence by his previous medical providers when he was notified of the tumor at the base of his neck.

The Supreme Court's decision and language regarding the application of the discovery rule is very favorable for defendants seeking to utilize a statute of limitations defense.


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