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Ask Maverick Your Own Question
Maverick, Attorney
Category: Personal Injury Law
Satisfied Customers: 6273
Experience:  20 years professional experience
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The facility that implanted a temporary IVC filter 10 years

Customer Question

The facility that implanted a temporary IVC filter 10 years ago continues to ask me for documentation about the type of device even though they implanted it. At the time, I was told I had 6 months to remove it. When I attempted to have it removed 4 months later, the device had imbedded itself into the vein. Now, when I call the facility for follow-up MRIs for this or other medical issues, I not only have to prod them to find the paperwork that helps prevent liability issues on their part, i.e. whether or not the device is MRI-compatible, but I also have to correct their next erroneous notation in their medical records: Apparently, a notation about the IVC filter says it WAS removed in 2006. Funny, I was just in the facility last week to have a CT scan to see if the filter was clogged. The CFO and Senior Vice President of the facility have assured me that they will assemble a team of people to help avoid these confusing dynamics that impact the medical PTSD I have related to the original event. However, why does the notation exist? It was a non-FDA-approved device, and removal should have been attempted within 22 days.
JA: OK. The Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: I consulted one in Oregon, but the statue of limitations is 2 years on the original implant. I wonder if I have a new case given this notation?
JA: Is there anything else the Lawyer should be aware of?
Customer: The filter is not clogged nor has it migrated. I was not aware it was not FDA-approved until earlier this year. At this time, I have consulted Paglialunga & Harris for a claim against the manufacturer, but they have used scare tactics on my cell phone, and I informed them that I was not comfortable with such tactics. I did follow through with their advice to have the filter checked. I have not contacted them with any information.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Lawyer about your situation and then connect you two.
Submitted: 11 months ago.
Category: Personal Injury Law
Expert:  Maverick replied 11 months ago.
Welcome to Just Answer (“JA”)! My name is Maverick. Please note that: (A) The information we provide is general information. No attorney-client relationship or privilege is formed by communicating with me. If you want legal advice, you must consult with a local attorney in person before acting or deciding not to act based on any information given here; (B) Experts answer questions based on the honor system. When I feel that I have provided you with a complete answer, I will ask for you to assign a feedback rating so that JA will compensate me for my time; and (C) You should not be concerned about any short delays between your questions and my replies. Please know that I answer most questions within the hour if I am signed on. If I am not signed on, then I still make every attempt to respond within 24 hours. Thank you for taking the time to understand how this site works. By continuing, you confirm that you understand and agree to these terms. Answer will follow in the pane below as per above parameters….
Expert:  Maverick replied 11 months ago.
Here is the OR law on this issue. Here is what it states in relevant part: (4)An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered. However, notwithstanding the provisions of ORS 12.160 (Suspension for minors and persons who are insane), every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered. So it seems to me that, yes, you can argue that you have two years from the date of your most recent discovery that the device was not FDA approved and that fact was concealed from you at the time it was implanted. The only problem is showing that this is a recent notation and not one that has been in your medical records for several years.