Persuasive brief · 90 minutes
Argue that a limitations period was tolled until the patient discovered a surgical error. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
To: Associate. From: Kwame Owusu, Partner. Re: Dalton v. Fairview Surgical. Our client, Ruth Dalton, learned in September that a sponge was left in her abdomen during a surgery five years ago. Fairview has moved to dismiss under the three-year statute of limitations. Please draft the Argument section of our opposition, arguing that the claim did not accrue until she discovered the injury and that Fairview cannot rely on the repose provision. Use only the Library and address Fairview's argument that she should have discovered it sooner.
Ms. Dalton had abdominal surgery at Fairview on June 4, five years ago. She had pain for months, and Dr. Sorensen at Fairview told her it was normal healing. She saw Fairview's staff twice more, and each time was told nothing was wrong. In September of this year, a different doctor ordered a scan, which showed a surgical sponge. She filed suit in October. Fairview's records show a sponge count that was recorded as correct.
The surgery was on June 4, more than three years before suit. Ms. Dalton reported pain immediately, so she was on notice. The claim is barred.
An action for medical malpractice must be brought within three years after the claim accrues. A claim accrues when the patient discovers, or through reasonable diligence should have discovered, the injury and its cause. In no event may an action be brought more than eight years after the act, except that the eight-year limit does not apply when a foreign object is left in the body.
A patient had pain after surgery and was told by her surgeon that it was normal. Held: for the patient. A patient who reports symptoms to a physician and is told there is no problem is not on inquiry notice of a cause, and a patient may rely on a physician's reassurance. Accrual is a question of fact when the patient acted reasonably. Discovery requires knowledge of both the injury and that a wrongful act might have caused it.
A patient waited three years after learning that a lab result was misread and sued after the limitations period. Held: the claim was barred because she knew of the injury and its cause and did nothing. The court distinguished cases in which a patient did not know and could not have learned the cause through ordinary diligence.
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
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