Statute of Limitations in Filing Federal Lawsuits by jpj17460

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									                                                                                       HIV: Hospital’s
 Abuse Or Neglect Of                                                                   Emergency
 Nursing Home Resident:                                                                Department
 Court Extends Statute Of                                                              Subject To State’s
                                                                                       Discrimination
 Limitations For Lawsuits.                                                             Laws, Court Says.
           he U.S. District Court for the East-
            ern District of Louisiana has                                                        patient came to the emergency
                                                     Abuse or neglect of a nurs-
            ruled that Louisiana’s ten year                                                      room with sever abdominal pain
                                                   ing home resident amounts                    from acute appendicitis. Upon his
        statute of limitations for breach of
contract, not the state’s one year statute of
                                                   to a legal breach of contract      arrival, according to the court r   ecord, he
limitations for personal injury lawsuits, ap-      for which the family may file      informed emergency room personnel that
plies to a civil lawsuit filed against a nurs-     suit. The statute of limita-       he was HIV positive. Various lab tests
ing home by the family to recover monetary         tions for breach of contract,      were done, x-rays were taken and an IV was
damages for abuse or neglect of a family                                              started. The emergency room physician
                                                   considerably longer than           told the patient he thought he had appendi-
member who at one time resided in the
                                                   that for personal injury, ap-      citis, and should be seen right away by the
nursing home.
     Note that each individual state has           plies in such a case.              surgeon. The ER physician went to find
jurisdiction to set its own statutes of limita-      Many if not most nursing         and consult with the surgeon.
tions for various categories of civil law-         home residents are in a vul-            The emergency room physician re-
suits. There are few generalities about stat-                                         turned to the ER and told the patient the
                                                   nerable physical and/or
utes of limitations that would hold true                                              surgeon at the hospital with whom he had
                                                   mental state.                      just spoken would not examine him, b        e-
across the board, except that in most states
the statute of limitations for filing suit for a     Placing a loved one in such      cause the patient was HIV positive. The
breach of contract is considerably longer          a facility necessarily entails     physician further told the patient that he
than the statutory time allowed to file a per-     trust on the part of the family    could not be admitted to the hospital, but
sonal injury case.                                                                    would have to be transported to a certain
                                                   as well as the resident.
     If a case is not started by the plaintiff                                        hospital in another city.
                                                             he
                                                      Since t resident resides             Eight or nine hours after he had pre-
or his or her legal representative, by filing
the case in court or by serving the sum-
                                                   in the nursing home, the           sented himself in the hospital’s emergency
mons and complaint upon the defendant as           family has comparatively           room, the patient was transported, at his
required by state law, within the time set by      limited access and opportu-        own expense, to the other hospital. At the
state law as the applicable statute of limita-     nity to learn if the resident is   other hospital, a surgeon examined him and
tions, the right to sue expires simply due to                                         decided that surgery was not indicated.
                                                   being neglected or mis-            However, the other hospital did admit him
the passage of time, regardless of the a      c-
                                                   treated.                           for several days for observation. It dis-
tual legal merits of the lawsuit.
     The number of years within which to             If entrusting one’s money        charged him when his acute symptoms had
sue is rigidly defined by state law. How-          to an investment company           resolved, without surgery.
ever, the courts have considerable latitude        creates a business relation-            The patient sued the first hospital, its
in how they may conceptualize the legal                                               ER physician and the surgeon for HIV dis-
                                                   ship of trust and account-
nature of a particular case so as to choose                                           crimination. The Court of Appeals of Ohio
                                                   ability, one would hope, at        ruled the patient had a valid case.
one limitations period rather than another,
and in defining the operative event which          least in principle, that en-            The court’s legal authority came en-
starts the time limit running.                     trusting a valued family           tirely from state a law forbidding a place of
     It is imp erative that knowledgeable          member to the care of a            public accommodation from discriminating
local legal counsel, familiar with state stat-                                        against a handicapped person as defined
                                                   business entity such as a
utes, court precedents and rules of court,                                            by law. State law says explicitly that a per-
                                                   nursing home would carry           son with HIV is protected from discrimina-
be consulted for any risk management deci-
sion to write off a potential claim for expira-
                                                   similar responsibilities.          tion based on HIV status. A victim of HIV
                                                      UNITED STATES DISTRICT COURT,   discrimination need not look to Federal law
tion of the statute of limitations. Schenck                  LOUISIANA, 1996.
vs. Living Centers-East, Inc., 917 F. Supp.                                           as the basis for a lawsuit. Fiske vs. Roo-
432 (E.D. La., 1996).                                                                 ney, 663 N.E. 2d 1014 (Ohio App., 1995).

 Legal Eagle Eye Newsletter for the Nursing Profession                                  July, 1996                 Page 6
         Legal information for nurses Legal Eagle Eye Newsletter for the Nursing Profession home page.

								
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