Jury must decide if paralysis suit was filed within Kentucky statute of limitations

January 6, 2017

hospital-entrance-no-credit-istock-photoA jury must determine whether a Kentucky woman should have known earlier that her paralysis was partly caused by the failure of health care providers to diagnose and treat her condition before it progressed, a federal judge has ruled.

Denying motions for summary judgment, U.S. District Judge Amul R. Thapar of the Eastern District of Kentucky said he could not make the “close call” on whether Robyn Bentley had known before September 2014 that a doctor and hospital that provided her with emergency care in July 2013 may have contributed to her injury.

Bentley filed suit Sept. 1, 2015, two days short of a year after a nerve specialist informed her that the defendants could have minimized or reversed her paralysis by treating her with steroids when she first presented with symptoms July 28, 2013.

Kentucky has a one-year statute of limitations on personal injury claims but recognizes a discovery rule that allows the limitations period to be tolled until the plaintiff knows or should have known of her injury.

“In baseball, ties go to the runner. In summary judgment, ties go to the plaintiff. Why? Because civil litigants have a right to a jury trial. And when a case comes down to a close call, the jury must be the one to make it,” Judge Thapar said.

Bentley had gone to an after-hours clinic run by Highlands Medical Center in Prestonburg, Kentucky, in July 2013 complaining of a sore throat. She was treated with an antibiotic, according to the opinion.

Eight days later she returned to Highlands with symptoms of nausea, abdominal and back pain, and difficulty urinating. The opinion says she was diagnosed with kidney stones, prescribed a painkiller and sent home.

The next day, July 29, 2013, she had severe pain running down her legs and began to experience paralysis ascending from her legs to her torso. She went to another hospital, Paul B. Hall Regional Medical Center, where she saw Dr. Thomas Styer, the opinion says.

Bentley was sent home with instructions to see her family doctor, who prescribed an immediate MRI that was nevertheless delayed for several hours. A Highlands radiologist, Dr. Terry Hall, then allegedly misread the MRI, Judge Thapar explained.

Eventually Bentley was diagnosed with an inflammation of her spinal cord and was placed on IV steroids, which halted and eased the paralysis to some extent but did not reverse it, the opinion says. She says she remains permanently partially paralyzed.

On Sept. 3, 2014, Bentley saw Dr. Carlos Pardo-Villamizar, a neurologist at Johns Hopkins University, who told her that Highlands and PBH could have minimized or reversed her paralysis if they had treated her with IV steroids July 29, 2013.

Bentley filed suit Sept. 1, 2015, just within the one-year limitations period from the date she saw Pardo-Villamizar, against Highlands, PBH, Styer and Hall.

Highlands and Hall settled with Bentley, and PBH and Styer moved for summary judgment. They argued that Bentley missed the one-year statute of limitations because she knew she had been injured from the time she was first treated and long before she saw Pardo-Villamizar.

Judge Thapar disagreed. A person may know they have been harmed but may not be not be aware that medical malpractice contributed to the harm, he explained.

“Harm often follows even competent care: Doctors might do everything right even if fate takes no pity on the patient. So a bad medical outcome is not necessarily indicative of negligence.

”As a result, Kentucky courts have stressed that the year does not run from a patient’s ‘discovery of harm’ — i.e., awareness that she suffered a ‘loss of health’ following medical treatment — but rather from her ‘discovery of injury,’” Judge Thapar said, citing Wiseman v. Alliant Hosps., 37 S.W.3d 709 (Ky. 2000).

The defendants argued that Bentley “knew from the get-go” that the defendants had wronged her. They said she was mad that the PBH staff wrote her off as a drug addict seeking opiates and later refused to pay their bill.

But Judge Thapar rejected that argument. He said Bentley was alleging a failure to do whatever was necessary to minimize her physical injury, not making “a customer service complaint of the sort that might make its way onto Yelp.”

Bentley v. Highlands Hospital Corp. et al., No. 15-97, 2016 WL 7234757 (E.D. Ky. Dec. 13, 2016).