A young boy's hip destroyed, but no one pays: how "reform" encourages gamesmanship, shotgun litigation and a rush to the Courthouse
In Griesbach v. Ross, et. al, a 13 year old suffered preventable, but irreversible damage to his leg and hip after osteomyelitis went undiagnosed. HIs family sued the Clinic and supervising doctor where he was treated, however after the statute of limitations had run, the doctor and clinic blamed their own P.A. for the mistake. His insurance company successfully argued that it was too late to sue him.
The Plaintiff argued that it had no way of knowing that the PA had not properly consulted with his supervising doctor until after the statute of limitations had run. The Court held that this kind of "discovery" claim only applies where the victim is unaware of his injury--not where he is unaware of the culprit. In doing so, it no only deprived the boy of his day in court, it also read out of the "reform" act the provision that allowed a late claim against someone whom the defendants argued was responsible for malpractice.
More importantly, though, this approach to litigation pushes victims to rush to court against every single person who is within the "zone of danger", as the only way to prevent an outcome such as occurred here is to rush to suit with everyone possible joined as a defendant. Even this won't always work given the short statute of limitations for malpractice, and it is an expensive, unwieldy and ultimately unfair approach: unfair to victims and to health care providers who might be implicated but are "probably" free of fault.
In addition, this approach to litigation encourages insurance company attorneys and their clients to "lay in the weeds" until the two year statute of limitations has run, and then point their finger at employees, co-workers, and anyone else they can scapegoat: they have everything to gain and nothing to lose. And young Griesbach is denied a "day in court" because his doctor employed a physician assistant who was incompetent, and then did not supervise him.Whatever happened to "the buck stops here" and the conservative rant that people should "take responsibility for their actions"? Does that only apply to careless injury victims--but not the rest of us?