Moss v. Dartmouth-Hitchcock et al.

2005 DNH 148

• Court: District Court, D. New Hampshire
• Decided: October 25, 2005
• Docket: CV-05-22-PB
• Status: Published

Opinion

Moss v . Dartmouth-Hitchcock et a l . CV-05-22-PB 10/25/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dana Moss

v. Case N o . 05-cv-22-PB Opinion No. 2005 DNH 148 Dartmouth-Hitchcock Medical Center and Dr. Perry Ball

O R D E R

Dr. Perry Ball performed spinal surgery on Dana Moss on

August 2 4 , 2000 at Dartmouth-Hitchcock Medical Center (“DHMC”).

On January 1 2 , 2005, Moss filed suit against D r . Ball and DHMC

for medical malpractice and medical negligence. Moss argues that

defendants are liable because D r . Ball implanted medical devices

during the surgery without her consent that continue to cause her

pain and suffering. Defendants have filed a motion for summary

judgment arguing that Moss’s claims are barred by the statute of

limitations.

New Hampshire Rev. Stat. Ann. § 508:4 provides in pertinent

part that claims such as the ones at issue here are time-barred

unless they are “commenced within three years of the time the

plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to

the act or omission complained of.” Thus, the operative date in

determining whether Moss’s claims are barred by the statute of

limitations is January 1 2 , 2002, three years before Moss filed

her federal court complaint.

Moss alleges that she continued to suffer pain and numbness

long after the August 2 4 , 2000 surgery. Thus, she reasonably

should have known of the injury on which her current claims are

based prior to January 1 2 , 2002. She also does not dispute

defendants’ contention that she obtained copies of her medical

records prior to November 1 , 2001. These records, which included

both intra-operative and post-operative x-rays and at least one

post-operative M R I , presumably would have disclosed the devices

that D r . Ball allegedly implanted and thus the records should

have placed her on notice of defendants’ alleged negligence and

its relationship to her continued pain.1 Further, defendants

have produced a complaint that Moss filed with the New Hampshire

1 Defendants acknowledge that D r . Ball used metallic markers during the surgery. These markers appear on the intra- operative x-ray, but they are not shown on the subsequent x-rays or the post-operative MRI because, defendants assert, they were removed before the surgery was completed. Moss appears to base her claim on the fact that the markers are depicted on the intra- operative x-ray.

-2- Board of Medicine on April 2 3 , 2002, in which she stated that she

had discovered that her injuries were due in part to the alleged

implanted medical devices when she received copies of her x-rays

and medical records in October 2001. In view of this evidence,

it is difficult to understand why Moss could not have discovered

her claims through the exercise of reasonable diligence prior to

January 1 2 , 2002. Moss has failed to respond to this evidence

with sufficient admissible evidence of her own to create a

genuine dispute on the question. I therefore grant defendants’

motion for summary judgment (Doc. N . 2 3 ) . 2

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge October 2 5 , 2005

cc: Dana Moss, pro se W . Kirk Abbott, Jr.,Esq.

2 Moss also argues that defendants are liable because they altered her medical records to falsely state that she suffers from a mental disorder and is unable to care for her children. This claim is also time-barred because Moss should reasonably have discovered this claim when she obtained copies of her medical records prior to November 1 , 2001.

-3-