Can we get statute of limitations for bariatric surgery overturned?

UPDATED: Oct 1, 2022

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Can we get statute of limitations for bariatric surgery overturned?

I had the ruix and wide gastric bypass 16 years ago; I wasn’t diagnosed with severe malabsorption until 2 years ago. I now have scurvy and my vitamin C levels are fatal testing 5 to 0, where critical low is anything below 37. My doctor was supposed to perform my surgery, instead, she had a male intern perform the surgery. My intestine was cut too far down, causing the malabsorption. I have several complications now, not just the vitamin C deficiency; I’m also deficient in vitamins A, E, K, D andno absorption of iron or B-12, ANA, and have the shingles virus in my right eye. What can be done for my family when I am gonebecause I am now waiting to die.

Asked on January 27, 2018 under Malpractice Law, Indiana


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, you cannot overturn the statute of limitations. The legislators who created it (it is created by statute, so by your state legislature) *knew* that it will result in some injustices--preventing innocent people who were harmed from seeking compensation. But they enact the statutes anyway because they believe that the gains from allowing people to know when they are protected from litigation by preventing old cases from being filed (old cases where it may be very difficult for the defendant to find and present evidence or witnesses necessary to defend him or her) outweighs the "cost" of barring some deserving cases. The statutes are created because it is believes that allowing old cases to come up harms society by clogging up courts with lawsuits where the defendants may not have a fair chance to defend themselves. Since the statute of limitations necessarily involves an acceptance of the fact that some otherwise-good cases will be prevented, the fact that you did not know about the harm in time to file will not allow you to escape or overturn the statute.

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