Appeals Court rules awareness is key to malpractice suit
October 29, 2009
By: Jordana Mishory
ose Cohen saw Dr. Robert Cooper for a facelift and eyelid surgery in 1997 but awoke to excruciating pain after stitches scratched her cornea and lacerated her eyelid.
She followed up with the Stuart surgeon for almost a year before realizing he had “erred in the procedure,” in the words of the 4th District Court of Appeal.
A malpractice lawsuit she filed in 2000 was dismissed for being beyond the two-year statute of limitations. The appellate court ruled Wednesday that a jury — and not a trial judge — should decide whether the case was filed in time.
Citing a 2008 precedent, Judge Spencer Levine wrote, “‘Simply suspecting wrongdoing is not enough’ when determining when the statute of limitation accrues.”
State law requires a medical malpractice case to be filed within two years of an incident occurring or being discovered.
Cooper claimed his patient should have known of problems three days after the botched surgery when an eye doctor blamed two sutures in her eyelid for the pain and irritation. The court said Cooper couldn’t claim his patient should have been suspicious immediately while assuring her that the eye condition would improve slowly.
Judges Martha Warner and Gary Farmer concurred.
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