Three year statute of limitations for medical malpractice applies, notwithstanding argument that cancer is a “noxious agent” with prolonged latent development.

Campbell v. Stafford , 2011 VT 11 (mem.)

The trial court concluded that plaintiff’s claim was time-barred under the three-year limitation set forth in 12 V.S.A. § 521. Plaintiff appeals the trial court’s denial of her motion for reconsideration and motion to amend.  We affirm.

 

Plaintiff filed her malpractice suit over three years of last date on which Defendant treated plaintiff without ordering additional testing or treatment for thyroid cancer.  After judgment had already been entered on statute of limitations grounds,  Plaintiff sought to amend  her complaint to allege the theory that her cancer was a noxious agent, and that the claim was actionable under 12 V.S.A. § 518..  But  this “claim” added nothing.  12 V.S.A. § 521, as opposed to 12 V.S.A. § 518(a), controls this case.

In order for 12 V.S.A. § 518(a) to apply, plaintiff’s cancer would have to be considered a “noxious agent.”  An “agent” is something that acts upon the body, causing a disease or illness such as cancer.  Though the cancer in this case may have had a prolonged development period, it was not itself a “noxious agent”. Given the failure of plaintiff’s amended complaint,  Defendants were entitled to summary judgment as a matter of law.