Limitation periods pit law against wronged patients
By MARTIN DYCKMAN
Published October 5, 2003
TALLAHASSEE - Women no longer expect to die of cervical cancer, as Rhonda Nehme did. Not if they get a timely Pap smear, which she did. If detected early, says the American Cancer Society, "it is one of the most successfully treated" malignancies.
According to a pathologist's testimony, however, the technologist who interpreted her slide had missed evidence of early-stage cancer that was as "big as a house."
But by the time anyone knew this, it was too late. Three years and nine months later, a fainting spell led to a diagnosis of stage four cancer. Ten months after that, in December 1997, she was dead. Nehme, 33, of Holly Hill, a full-time homemaker, left a disabled husband and six children. They have gotten along poorly without her.
It was also too late for justice. In the time it took for her widower, Naji, to follow his suspicions to a lawyer's office, and for the attorneys to collect the evidence Florida law requires to launch a medical malpractice lawsuit, more than five years had elapsed from the date of the technologist's fatal error. The Florida law then in effect allowed four years at most.
The lawyers pursued the case anyhow, citing an exception for cases "in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period." That would have given them six years, but only if they could persuade the courts that "concealment" did not have to be deliberate. They lost at every step, the last of them a 6-0 decision by the Florida Supreme Court 10 days ago.
The court was bound by what Florida's well-kept Legislature plainly intended. Still, it brings to mind what a Chicago reporter once wrote about a certain notorious case: "Law, the bastard offspring of justice, handed her mother a frightful beating in criminal court today."
The beating was so brutal this time that Chief Justice Harry Lee Anstead and Justice Barbara Pariente (who is a cancer patient) felt they had to note it in a concurring opinion.
"Taken to its natural conclusion," Anstead wrote, "our holding means that an innocent person who suffers devastating consequences through an egregious mistake by a medical provider may lose her entitlement to civil justice even before she becomes aware that a wrong was committed. That is precisely the effect of the Legislature's enactment of the statute of repose we construe today, and it is important that this effect be known.
"Limitation periods," he explained, "are usually predicated upon the concept that people should not be allowed to sleep upon their rights and that society needs to get on with its business without the indefinite fear of legal action. But a key ingredient in that concept is that people have noticed that they have been harmed by the wrong of another. . . . The arguably short period of time provided under this statute of repose simply ran out six months after the victim died."
Medical defendants have it better in Florida than anyone else. The repose period is 12 years for most manufactured products. For airplanes, it's 20.
The Legislature has tinkered with the medical law since 1994, but not in any way that would have helped the Nehmes. The outside limit is now seven years, but only if fraud, intentional concealment or misrepresentation can be shown; otherwise, it's still four. For cases involving child victims, it's eight. But for surviving children who lose their mom or dad, tough luck.
This is the fourth time I have written about this sinful law. Occasionally, some legislators are troubled enough to try to fix it, but the mountain that has to move is the medical-industrial-insurance complex, where it would be hard to squeeze out even a pint of human blood.
The key defendant in this case was not some doctor barely making it in the face of Medicare cuts and insurance gouging. It was the world's second-largest megamedical corporation.
Mrs. Nehme's exam took place at the Volusia County Health Department - the couple, like so many others, were uninsured - which sent the slide to SmithKlineBeecham Clinical Laboratories, which passed it off in turn to a subcontractor, where the technologist who read the slide saw nothing requiring a pathologist's attention.
"Women do not know," says Earl Denney, the West Palm Beach trial lawyer who was lead counsel for the Nehmes, "that their Pap smear first is going to be reviewed by someone who is not a medical doctor. Secondly, they don't know that if their Pap smear is wrongly interpreted, that there is only a random chance that it will be looked at by a pathologist."
This owes to federal law, which requires a laboratory's pathologists to review only random samples of "normal" slides.
"The same thing can happen to anybody," says Naji Nehme.
And it will, so long as companies like SmithKlineBeecham have so little to fear from either the law or the courts.