Verdicts

The statute of limitations for bringing an FTCA action is two years from the time the cause of action accrues. The government sought dismissal, arguing that the court lacked jurisdiction over the action because it was untimely filed, having been brought more than two years after the child's 2007 diagnosis. The plaintiffs countered that the date of accrual was the date on which they discovered that the child's injuries might not have been congenital, but might instead have been the result of medical malpractice. That date was in 2011.

The court considering the dismissal issue noted that under the diligence-discovery rule, an FTCA claim does not accrue until the plaintiff has discovered, or with reasonable diligence should have discovered, not only that an injury has occurred, but also the cause of that injury. Valdez ex rel. Donely v. United States, 518 F.3d 173, 178 (2d Cir. 2008) (requiring that a plaintiff know, or reasonably could know, “that the injury he suffered related in some way to the medical treatment he received.”). The defendant United States argued that the possibility of doctor-caused injury to the child was “an obvious question” based on Dr. Ferrick's inquiries prior to diagnosis concerning the child's prior treatment, and his determination that the use of a brace should be ruled out as a treatment option because of the child's age.

The court declined to dismiss, finding that nothing in the record supported the government's position that the child's parents “should have known from Dr. Ferrick's inquires about past treatment and bracing that [the child's] condition could have been the result of medical malpractice, especially when this discussion is considered in the context of Dr. Ferrick advising [the child's] parents that [her] condition likely developed in utero.” The court went on to note that “Dr. Ferrick's records do not reflect any discussion of medical malpractice, nor is there a reasonable basis to conclude that the possibility of medical malpractice was an 'obvious question,' as Defendant argues. The best that can be said of this discussion is that it marks the first time that Plaintiffs learned of [the child's] injury.”

In GA, Confidentiality Privilege Survives Deceased Psychiatric Patient

Georgia's high court has declared that, because of the patient/psychiatrist confidentiality privilege, a psychiatrist need not turn over the patient file for his deceased patient to the man's parents, even though the parents say they need those records in order to prepare a possible case against the doctor. Cooksey v. Landry, No. S14A0926.

The parents of a 22-year-old man attended a session between their son and psychiatrist Crit Cooksey in August 2012. At that session, the doctor prescribed two medications for the young man ' Seroquel and Cymbalta. One month later, the young man committed suicide. The parents assert that the drugs prescribed in August 2012 altered their son's behavior, and they think they might have a valid claim against Cooksey for failure to inform them and their son of the increased risk of suicide in young people taking these two medications, and for failure to properly monitor their son after prescribing them. They asked for records of their son's care from the doctor in order to determine if they had a viable malpractice claim against him, but he refused to turn them over. Therefore, they sought an injunction requiring him to do so. In January, Judge James Bodiford ordered Cooksey to produce the deceased patient's records.

On appeal, Georgia Supreme Court Chief Justice Hugh Thompson wrote for the 5-2 majority that only non-confidential communications need be provided to the parents, because, according to the Georgia statute codifying the psychiatrist/patient privilege, confidential communications between them may be disclosed only if the patient has waived the confidentiality privilege. That law shows the legislature's intent that patients feel free to disclose anything to their psychiatrists without fear of its being discovered by others. That privilege survives the patient's death. Judge Thompson further wrote that the parents in this case “have both the legal right to maintain an action for the wrongful death of their son and the ability to seek Dr. Cooksey's files through normal discovery procedures.” And it made no difference to the court that it would be harder for these parents to make their claim absent the right to obtain their son's treatment records; that added difficulty “does not authorize the use of a trial court's equitable powers contrary to well-established law,” Thompson wrote.

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Because of Diligence/Discovery Rule, FTCA Claim Not Time-Barred

The U.S. District Court for the Western District of New York has declined to dismiss a case brought under the Federal Tort Claims Act. (FTCA) for failure to timely file, as the parents of the injured child had reason to believe that their daughter's problems developed in utero, and they were not put on notice until many years after discovering her injuries that they could have been caused by substandard medical care. A.E.F., an Infant v. USA, 13-CV-285, NYLJ 1202658095627, at *1 (WDNY, Decided May 30, 2014).

In this action for medical malpractice, a child was born via breach birth. She initially developed normally, but shortly before her second birthday her parents observed that she walked oddly. She was seen by several medical professionals, including a pediatrician, and was eventually diagnosed on June 12, 2007 by another doctor, Dr. Ferrick. The diagnosis was bilateral hip dysplasia and bilateral dislocated hips. Dr. Ferrick told the child's parents that these conditions likely developed in utero. In 2011, when the child's grandfather, who had hip problems of his own, suggested that her hip problems might have been the result of medical malpractice, the parents began pursuing the possibility of seeking compensation. Because the pediatrician and the hospital at which the child was treated were agents of the federal government, the child and her parents lodged a claim against the United States in 2012, in accordance with the FTCA.

The statute of limitations for bringing an FTCA action is two years from the time the cause of action accrues. The government sought dismissal, arguing that the court lacked jurisdiction over the action because it was untimely filed, having been brought more than two years after the child's 2007 diagnosis. The plaintiffs countered that the date of accrual was the date on which they discovered that the child's injuries might not have been congenital, but might instead have been the result of medical malpractice. That date was in 2011.

The court considering the dismissal issue noted that under the diligence-discovery rule, an FTCA claim does not accrue until the plaintiff has discovered, or with reasonable diligence should have discovered, not only that an injury has occurred, but also the cause of that injury. Valdez ex rel. Donely v. United States , 518 F.3d 173, 178 (2d Cir. 2008) (requiring that a plaintiff know, or reasonably could know, “that the injury he suffered related in some way to the medical treatment he received.”). The defendant United States argued that the possibility of doctor-caused injury to the child was “an obvious question” based on Dr. Ferrick's inquiries prior to diagnosis concerning the child's prior treatment, and his determination that the use of a brace should be ruled out as a treatment option because of the child's age.

The court declined to dismiss, finding that nothing in the record supported the government's position that the child's parents “should have known from Dr. Ferrick's inquires about past treatment and bracing that [the child's] condition could have been the result of medical malpractice, especially when this discussion is considered in the context of Dr. Ferrick advising [the child's] parents that [her] condition likely developed in utero.” The court went on to note that “Dr. Ferrick's records do not reflect any discussion of medical malpractice, nor is there a reasonable basis to conclude that the possibility of medical malpractice was an 'obvious question,' as Defendant argues. The best that can be said of this discussion is that it marks the first time that Plaintiffs learned of [the child's] injury.”

In GA, Confidentiality Privilege Survives Deceased Psychiatric Patient

Georgia's high court has declared that, because of the patient/psychiatrist confidentiality privilege, a psychiatrist need not turn over the patient file for his deceased patient to the man's parents, even though the parents say they need those records in order to prepare a possible case against the doctor. Cooksey v. Landry, No. S14A0926.

The parents of a 22-year-old man attended a session between their son and psychiatrist Crit Cooksey in August 2012. At that session, the doctor prescribed two medications for the young man ' Seroquel and Cymbalta. One month later, the young man committed suicide. The parents assert that the drugs prescribed in August 2012 altered their son's behavior, and they think they might have a valid claim against Cooksey for failure to inform them and their son of the increased risk of suicide in young people taking these two medications, and for failure to properly monitor their son after prescribing them. They asked for records of their son's care from the doctor in order to determine if they had a viable malpractice claim against him, but he refused to turn them over. Therefore, they sought an injunction requiring him to do so. In January, Judge James Bodiford ordered Cooksey to produce the deceased patient's records.

On appeal, Georgia Supreme Court Chief Justice Hugh Thompson wrote for the 5-2 majority that only non-confidential communications need be provided to the parents, because, according to the Georgia statute codifying the psychiatrist/patient privilege, confidential communications between them may be disclosed only if the patient has waived the confidentiality privilege. That law shows the legislature's intent that patients feel free to disclose anything to their psychiatrists without fear of its being discovered by others. That privilege survives the patient's death. Judge Thompson further wrote that the parents in this case “have both the legal right to maintain an action for the wrongful death of their son and the ability to seek Dr. Cooksey's files through normal discovery procedures.” And it made no difference to the court that it would be harder for these parents to make their claim absent the right to obtain their son's treatment records; that added difficulty “does not authorize the use of a trial court's equitable powers contrary to well-established law,” Thompson wrote.

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