Sally Hagerty and Ilyssa Kelson Obtain Summary Judgment for Plastic Surgeon on Statute of Limitations Grounds

February 5, 2016

RRD Partner Sally O. Hagerty and Counsel Ilyssa H. Kelson obtained summary judgment in a medical malpractice lawsuit based only on alleged lack of informed consent. The case involves the alleged failure of a plastic surgeon to adequately inform a patient of the risks associated with “TRAM flap” (trans-rectus abdominal muscle) reconstruction of the breasts following mastectomy for breast cancer. Plaintiff underwent a two-stage reconstruction procedure by the defendant in September and October, 2010. In January, 2011, she was hospitalized for post-operative delayed wound healing and infection. On April 19, 2011, she had her last visit with the defendant plastic surgeon. Subsequently, she had a number of revisions and other treatment for infection and delayed wound healing by other providers.  Plaintiff commenced her action on July 18, 2013. At deposition, Plaintiff testified that at the time of her hospital admission in January, 2011, she believed that the defendant plastic surgeon had both committed malpractice and had failed to adequately inform her of the risks of the TRAM flap reconstruction procedure undertaken in September and October, 2010. She also alleged in her complaint and testified at deposition that she terminated care with Defendant on April 19, 2011. Defendant moved for summary judgment on statute of limitations grounds.

Plaintiff asserted that either the continuous course of conduct doctrine or the continuous course of treatment doctrine should have tolled the running of the statute of limitations for her claim.

Plaintiff’s lawsuit was not commenced until July, 2013; more than two years after Plaintiff acknowledged “actionable harm” and did not include claims of medical malpractice in the performance of the surgical procedures. Defendants took the position that neither the continuing course of conduct nor the continuing course of treatment equitable doctrines applied to toll the running of the 2-year statute of limitations applicable to her claim of lack of informed consent. The court agreed.

The Honorable Taggart Adams granted summary judgment.