Legal lessons on Ernesto's medical saga(1)

By J. Alfredo Santana

Part one of two.

It’s been three years after my brother Ernesto passed away because the legs injuries he sustained in an Access Paratransit minivan accident, and the legal and tortuous lessons piled up like a mountain of terms and procedures. This is a recollection of what I learned while I tried to push a suit for medical malpractice versus Cedars Sinai Medical Center, the hospital were my brother saw for the last time daylight on earth.

First, lawyers tend to shy almost immediately away when they learn of a case whereby a person with a special disability is unlikely to survive injuries, which indeed, jeopardize someone’s life. My brother, as I have written before in this newsblog, lived with a rare condition named Osteogenesis Imperfecta (OI). This congenital condition makes bones very brittle. People born with it carry fractures even before they are born.

Individuals like Ernesto, and my sister Olympia, suffer many fractures all their lives. Now in her 40s, my sister has lived dozens of fractures in her ribs, legs and arms. Likewise, Ernesto had many fractures in his limbs and ribs cage before his last two leg fractures.

I consulted a lawyer in the Pasadena area. That was a little more than a year ago, knowing that statues of limitations in the state of California set a three year deadline to file complaints against medical professionals whom one suspects commit medical malpractice, or cause wrongful death.

He was attorney Neil Fraser.

Fraser said that most medical malpractices are filed within one year of the suspected occurrence. The state of California calls for filing deadlines of one year if someone suspects wrongful death. The three-year statute applies only if the malpractice shows up in the patience’s general state of health, he said. In other words, if the patient lives, but a detriment in his or her health flares up within three years, as consequence of the treatment the person received at the hospital, the person is legally entitled to file suit.

Thus, lawyers tend to agree that if something should have been filed, the suit should have taken place within one year of my brother’s departure. However, given the nature of my brother’s case, an exception could have been made in the courts, based on fraud, or intentional concealment of the evidence that caused negligence in the procedural treatment.

Here is where the case became tricky. Attorney Fraser said that because of the pre-existing condition of my brother, attorneys from Cedars Sinai could motion to dismissed the case, because the alleged pre-condition, and weakness of the legal challenge. Fraser said someone with two broken legs, and living with OI, at age 36, is reasonably and medically considered to be in great life danger, even before being treated with reconstructive surgery.

continues to part two...