Can I file a fraud claim for unnecessary surgery if the med mal statute has expired?

by Anonymous

My surgeon performed a total hysterectomy (both ovaries/tubes/uterus/cervix) for a large (18 cm) benign ovarian cyst. I only consented to have this one ovary removed, unless I had a cancerous cyst, because I wanted to have a baby. The Dr notes my fertility wishes multiple times in my chart, pre- and post-op, and told me two times pre-op he was 90% confident I did not have cancer.

When I ordered my inpatient records almost two years after my surgery, I discovered the surgeon submitted pre-op surgeon's orders for a hysterectomy (the same day as the Informed Consent discussion), even though I only consented to have one ovary removed unless I had cancer. I also discovered the surgeon had a staff member sign my surgical consent forms as a witness when this staff member was not present at any time during the Informed Consent discussion.

Because of these and many more alarming facts I've uncovered, I believe the surgeon always intended to perform a total hysterectomy against my consent. I base this on the pre-op surgeon's orders he submitted for a hysterectomy against my consent and unknown to me until two years after my surgery. The surgeon also documented other false statements in my surgical reports compared with my pathology reports and intra-op surgical records.

Unfortunately, by the time I discovered these findings, it was too late to file a medical malpractice claim in my state. Therefore, can I file a fraud claim against this surgeon, which carries a minimum five year statute of limitations in my state? Is there anything else I can do? Thank you.

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ANSWER for "Can I file a fraud claim for unnecessary surgery if the med mal statute has expired?":

Anonymous (Missouri):

Actually the Statute of Limitations in the State of Missouri for Fraud is not 5 years, but 10. The limitations period for medical malpractice is 2 years.

You state you discovered the medical malpractice before the 2 years statute of limitations expired. If so you would have had time to file your lawsuit. Presuming the worst, you apparently were unable to file suit within that 2 year statutory period.

All may not be lost...

There may still be a way for you to pursue your claim. In Missouri, in medical malpractice claims the statute of limitations "may" begin when the person's injury is "capable of ascertainment" and has come to a point of "completion".

That means the statute may not start to run until the injury - the medical malpractice - has come to a point where it is able to be determined by an "informed" patient at the time the injury was fully discoverable. That informed patient may be you.

Therefore if you can prove you weren't physically able to determine the existence of the malpractice until after the 2 year statutory period expired, you may still have a right to file suit.

Unless you have substantial evidence which proves the doctor colluded with, or otherwise acted in a manner intended to perpetrate a fraud upon you, you won't have a very good chance of succeeding in a suit for fraud. Your chances are much better with malpractice.

When it comes to medical malpractice claims you should always consult with a medical malpractice attorney. Self-representation in medical malpractice cases is never advised. Most medical malpractice attorneys won't charge any fee for an initial office consultation. You may still have a chance of succeeding.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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Comments for Can I file a fraud claim for unnecessary surgery if the med mal statute has expired?

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Tolling the statute of limitations?
by: Anonymous

Thanks for your reply. Can you provide the MO statute reference that speaks to tolling the med mal statutory limits as you mentioned in your response? The most recent revision from August 2011 no longer includes a provision to toll the med mal statute, so it seems I'm reviewing the wrong statute.

Also, based on the enormous volume of research and factual findings of my case, I believe I do have substantial evidence to prove all elements of fraud. Thus, that's good to know the fraud statute has a 10 year limit instead of five years.

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