NOTICE OF
INTENT TO SUE MAY NOT TRIGGER STATUTE, DUNCAN V. SPIVAK
In Duncan v. Spivak (2001) 01 CDOS 10204,
the Court of Appeal held that sending a physician a notice of intent to
sue may not necessarily force a patient into filing suit within a year to
avoid the statute of limitations if the patient’s physicians subsequently
fail to identify a cause of the injury.
In Duncan v. Spivak, a patient underwent
a laparoscopic hernia repair. After experiencing post-surgical pain, the
patient consulted with a number of physicians who could not find the
reason for his pain. Five months after surgery, the patient consulted an
attorney who then served the surgeon with a notice of intent to sue. The
patient continued to consult with other physicians and even underwent
exploratory surgery, but was still unable to locate the cause of his pain.
Accordingly, his attorney then withdrew from the case. Fourteen months
after his notice of intent to sue, the patient underwent another
exploratory surgery which removed a surgical staple that had been
intentionally placed there originally to affix the repair mesh to the
abdominal wall. The patient filed suit and the surgeon moved for summary
judgment under the statute of limitations on the ground that more than a
year had elapsed since the patient suspected malpractice when he sent the
notice of intent to sue.
The appellate court held that the rule
which tolls the statute of limitations if a foreign body is wrongfully
left in the body did not apply because there was a question of fact as to
whether the staple was a “foreign body” since it was intentionally left
there by the surgeon.
However, the court did hold that the
surgeon could not obtain summary judgment because the patient did not
discover facts essential to his claim until nineteen months after surgery
when he underwent his second exploratory surgery. The fact that the
patient saw an attorney who sent a notice of intent to sue did not mean
that the patient had discovered facts essential to his claim as a matter
of law when other physicians subsequently failed to find the cause of his
pain.
The court also noted that a suspicion of
wrongdoing will start the running of the statute of limitations if a
patient fails to seek confirmation of his or her suspicions.
