Tuesday, February 15, 2011

SOL Practitioner

Campbell v. Stafford, 2011 VT 11.


Bad puns aside, before I went to law school, “SOL” indicated something a bit cruder than “statute of limitations”—this case illustrates that the underlying meaning of the acronym is largely the same. This appeal from the trial court’s denial of plaintiff’s motion for reconsideration and motion to amend stems (factually speaking) from a series of treatment at the Berlin Health Center.


Plaintiff’s doc first noted plaintiff’s enlarged thyroid after a 1991 car accident. In ’92, after several tests, plaintiff was diagnosed with a benign enlargement of her thyroid, consistent with common goiter. There were various visits to the doc over the next twelve years, and plaintiff declined some cancer screening. There are a lot of medical terms and descriptions of tests in the opinion, but the bottom line is that on October 4, 2004 (this is an important date), the doc had some concerns beyond the enlarged thyroid, two days later plaintiff was given an ultrasound and diagnosed with thyroid cancer. In December 2004, plaintiff underwent surgery to remove her thyroid. 

The surgery damaged plaintiff’s left vocal cord. On October 16, 2007, plaintiff filed suit against her former doc alleging medical malpractice under 12 V.S.A. § 1908. Fletcher Allen Health Care was named as doc’s employer (FAHC owns the Berlin Health Center). There is some enthralling procedural maneuvering in the opinion—and that’s why we give you the link at the top. Long story short: defendants filed a motion for summary judgment based on the three-year statute of limitations for med mal; plaintiff opposed and amended the complaint (arguing that a different SOL should apply—the one for latent injuries caused by radiation and noxious agents AKA “Count II”); court granted the motion for summary judgment; plaintiff moved for reconsideration and to amend the complaint again, this time to add a theory of “continuing treatment” (which would bring the claim out of the SOL, AKA “Count III”); trial court denied both motions.

Still with me? Good. Plaintiff appealed to SCOV arguing that the trial court misapplied the summary-judgment standard; that plaintiff’s Counts II and III were viable claims; and that the trial court abused discretion when it denied plaintiff’s motion for reconsideration and to add Count III.

The SCOV reasoned that Count I was time barred. The doc’s last treatment of plaintiff without ordering further tests was October 4, 2004. Plaintiff filed suit October 16, 2007. That’s more than three years. Thank you for playing. Please try again.

Count II was more creative, but ultimately met the same result. Plaintiff’s argument was that cancer itself is a “noxious agent” as defined in another SOL, which starts the three-year period running from when the plaintiff knew or should have known of the injury. The SCOV spent some time discussing this theory, concluding that the injury here was “an internal cellular growth and was not, itself, a ‘noxious agent.’” An agent is something external that is introduced to the body and causes injury. Count II was also time barred.

Finally, the SCOV addressed plaintiff’s claim that the trial court abused its discretion in denying the motion for reconsideration and to amend the complaint. The SCOV, apparently, was not impressed with this theory, noting that “plaintiff used the motion to reconsider to raise a wholly new theory of why the statute of limitations had not run.” Because there was no reason plaintiff couldn’t have included this theory in the first place, the SCOV did not deign to give plaintiff another bite at the apple.

Keep your eye on the clock, boys and girls. ‘Cause if the SOL runs, then you’re SOL.

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