Issue of the CaseThe defendant, a licensed physician, operated on the plaintiff on October 1, 1978. On 16 August 1982, the plaintiff realized that the operation the physician performed on her was unnecessary because there were alternative drugs that could have treated her condition. The defendant denied the charges, insisting that they were barred by a three-year limitation of actions. The proposal to dismiss was allowed, and the plaintiff appealed the lower court’s decision. The importance of this appeal was to determine if the plaintiff’s discovery of an alternative treatment met the threshold of non-apparent “injury.” The “injury” claim must be filed within the first year of recognition and within three years since the last act of the defendant (Frumer, Friedman, & Sklaren, 2016).

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The relevant rule of the law is that the plaintiff must institute the charge of medical malpractices against the defendant not less than one year of discovery of the said malpractice. Moreover, the plaintiff must not take more than three years since the last action of the defendant since that gives rise to the proceedings. Unless otherwise guided by the statute, the cause of action for a professional malpractice begins to accrue from the time the defendant performs the last on a patient.

The plaintiff suffered an injury that was not apparent, when the defendant operated on her on 1 October 1978. Further, she did not discover the alleged injury until 1981, which was within three years as provided for in the statute to institute legal proceedings. Notably, the plaintiff commenced legal action on 16 August 1982, which was within one year of her discovery of the malpractice.

The appellate court concluded that the time for the plaintiff to institute an action began on 1 October 1978, the day the defendant performed the surgery. Since her injury was apparent, her operations brought her to within the three-year limit for action as per the statutory provisions. However, the court dismissed her application because there was a misinterpretation between “discovery of injury” and “discovery of negligence.” The court argued that the plaintiff discovered the injury at the time the defendant operated on her on 1 October 1978 since the “injury” constituted the removal of her ovaries. Therefore, what she discovered in 1981 was not “injury” but the negligence of the defendant, which is not provided for in the statute.

  • Frumer, L. R., Friedman, M. I., & Sklaren, C. S. (2016). Is the Action Time-Barred? Raising or Avoiding the Defense of the Statute of Limitation or Statute of Repose (Vol. 4). Products Liability. London: Oxford University Press.