“Discovery Rule” Analyzed in Cancer Treatment Case

The statute of limitations on a Tennessee HCLA claim begins to run “once the plaintiff has information sufficient to alert a reasonable person of the need to investigate the injury[.]” (internal citation omitted).

In Dondero v. Accuray Incorporated, No. E2017-01741-COA-R3-CV (Tenn. Ct. App. July 26, 2018), plaintiff had been diagnosed with prostate cancer and, in an effort to avoid having surgery to remove his prostate, went to defendant doctor to discuss CyberKnife treatment. Plaintiff asserted that he was given a pamphlet describing the treatment as having “extreme accuracy” that would “spar[e] surrounding healthy tissue.” Plaintiff underwent five CyberKnife treatments in October 2012 with defendant Dr. Kimsey, and during two he experienced “pain in his penis and a burning sensation in his lower abdomen.”

In July 2013, plaintiff consulted with his general practitioner about blood from his rectum. He was referred to a gastroenterologist in August 2013, and in September had to have a procedure to cauterize damage that plaintiff “admittedly assumed…was caused by the CyberKnife treatment.” At a December 2013 appointment with Dr. Kimsey, plaintiff complained about several problems he was experiencing, including the damage that had to be cauterized, but “Dr. Kimsey told him that this was a common problem associated with cyber knife.”

After several months of plaintiff’s blood levels fluctuating, he was referred by his general practitioner to a urologist. A scan was done in June 2014, which could not be read due to scar tissue. After this, plaintiff sent Dr. Kimsey an email cancelling an upcoming appointment and stating that he was “in the process of determining how I should go forward since Cyber Knife is no longer an option and removing what is left of my prostate is not an option.” On September 8, 2014, plaintiff was told by the new urologist that “due to having the Cyber Knife treatments there [were] very few to no options that [were] not high risk.” Plaintiff got a second opinion on September 17, 2014, where additional testing revealed that he still had prostate cancer, and a radical surgery was performed thereafter.

Plaintiff sent defendant doctor and hospital pre-suit notice of an HCLA claim on September 16, 2015, and then filed his complaint within 120 days against the doctor, hospital, and developer of the CyberKnife treatment system. Plaintiff alleged that defendants “fail[ed] to disclose that the treatment indeed posed a risk of radiation damage to tissue and organs adjacent to the adenocarcenomas,” and that defendants “recklessly mispresent[ed] the safety of the treatment.” All three defendants filed motions for summary judgment. The trial court granted Accuray’s motion based on the statute of limitations, and granted the doctor and hospital’s motions based on issues with plaintiff’s expert witness. The Court of Appeals affirmed summary judgment for all three defendants, but based its decision solely on the statute of limitations.

Plaintiffs in HCLA cases must send pre-suit notice within one year after their cause of action accrues. “A cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.” (internal citation omitted). While the discovery rule can be helpful to plaintiffs, it “does not delay the accrual of a cause of action…until the plaintiff knows the full extent of the damages,” but only serves to toll the limitations period “during the period when the plaintiff had no knowledge at all that the wrong had occurred and, as a reasonable person, was not put on inquiry.” (internal citations omitted).

Based on the facts of this case, the Court of Appeals found that plaintiff’s cause of action accrued “at the very latest by September 8, 2014.” Plaintiff had compiled his own timeline of events on or before that date, and he described his surgery in September 2013 as “colon damage [that] was repaired due to cyber knife.” The Court reasoned:

The defendants have proffered uncontroverted evidence that [plaintiff] knew in 2013 that he had surrounding tissue damage to his rectum, colon, and/or intestines and that it was due to the CyberKnife radiation treatment. This damage required repair by a gastroenterologist. When [plaintiff] complained to Dr. Kimsey about the damage to his intestines, he was told that ‘this was a common problem associated with cyber knife.’ Thereafter, [plaintiff] continued to experience pain, blood in his urine, and other urinary issues, and his urologist was unable to read his CT scan due to scarring. This information was sufficient to have placed a reasonable person on notice of the injury and that it was the result of the defendants’ allegedly wrongful conduct.

Because plaintiff had notice of his claims no later than September 8, 2014, but did not send pre-suit notice until September 16, 2015, the notice was not sent within the one-year statute of limitations and the HCLA claims were thus barred by the statute of limitations. Summary judgment was accordingly affirmed.

Plaintiff argued that Dr. Kimsey’s continued assurances that the complications plaintiff was experiencing were normal affected the statute of limitations, but the Court of Appeals disagreed. The Court pointed out that plaintiff’s claims were “not about the ultimate success or failure of the CyberKnife treatment,” but about the assertion that “defendants failed to inform [plaintiff] about the possibility of radiation damage to surrounding tissue and organs.” The Court reasoned that once plaintiff knew that surrounding tissue had been damaged by the treatment, he was aware of the injury alleged in the complaint, and the doctor’s assurances were irrelevant. The Court further noted that in plaintiff’s meeting with his first urologist, he became aware that he had very few treatment options remaining. The Court ruled that “it was not necessary for [plaintiff] to obtain a second opinion from a second urologist to confirm this information in order for him to have notice of it.”

This HCLA case had a fairly complicated fact pattern with many dates involved. In a case like this, it’s important for an attorney to closely analyze the claims being made and the relevant dates to look for the most conservative date a defendant might argue the statute of limitations time began to run.   Obviously, the most conservative date is the date of the procedure or event at issue. But, quite often there is no injury (or at least known injury) on that date.  The next most conservative date is when the patient begins to have complications from the procedure that are different in kind or gravity than what are normally experienced in the procedure.   I hasten to add the statute of limitations does not necessary begin to run when those complications occur – the devil is in the details.   But, from the standpoint of the plaintiff’s attorney, the conservative view is the safest view.

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