OAG finds patient at fault for not seeking medical help after 14 years of symptoms

Questioning why she did not seek medical help despite experiencing symptoms for 14 years, the Office of the Attorney General moves the Superior Court to dismiss the lawsuit of Remedio Elameto, a woman who claimed that a surgical team allegedly left a 15-centimeter long surgical clamp in her abdomen during surgery to address her irregular periods and ovarian cysts at the Commonwealth Health Center on Saipan in August 2000.

Assistant attorney general David Lochabay, counsel for the CNMI government, pointed out that based on the allegations in the complaint, Elameto had surgery in 2000, then suffered terribly for 14 years without seeking readily available medical assistance.

“Any reasonable person would have known, or should have known, that they needed to seek medical assistance,” Lochabay said.

At that point of time, Lochabay said, the statute of limitations on these claims began to run.

He said this was far in advance of Elameto’s second operation in 2014.

Thus, the government lawyer pointed out, the malpractice claim of Elameto is barred by the statute of limitations, as are the claims that are derivative of her claim.

Elameto disclosed that it was in June 2014 or almost 14 years later when the surgical clamp was discovered and removed at Guam Memorial Hospital.

Following the CHC surgery, Elameto claimed to have experienced irregular periods, pain, fatigue, sleep disruption, interference with her activities of daily living, and reduced interest and ability to enjoy activities she had previously engaged in.

Elameto and her common-law husband, Pedro Pua, are suing the CNMI government and two former CHC doctors Rajee Iyer and Gary Ramsey for medical malpractice, bad faith, and emotional distress and loss of consortium.

Elameto and Pua, through counsel Claire Kelleher-Smith, asked the Superior Court to hold the defendants liable to pay them damages, court costs, and attorney’s fees. They demanded a jury trial.

The plaintiffs also requested the court to issue a declaration that the liability limitations of the Government Liability Act are unconstitutional because such limits deny tort victims such as them, equal protection of the laws.

In the government’s motion to dismiss, Lochabay said according to the Commonwealth statute of limitations for medical malpractice, the following actions shall be commenced only within two years after the cause of action accrues—“actions for malpractice, error, or mistake against physicians, surgeons, dentists, medical or dental practitioners, and medical or dental assistants.”

Lochabay said one of the exceptions is for cases in which an allegedly injured plaintiff is unaware that he/she has been injured until after the limitation period has expired.

“In such cases the limitation period is regarded as tolled until an allegedly injured party knew or should have known, in the exercise of reasonable diligence, that they had been injured,” Lochabay explained.

Lochabay said it is readily apparent that any person experiencing these symptoms for 14 years knew or should have known they had a problem requiring medical consultation and evaluation.

He said medical consultation and evaluation for Elameto during those 14 years was readily available on Saipan and the court may take judicial notice of that fact.

Lochabay asserted that any competent physician consulted by Elameto to address symptoms of abdominal distress over those 14 years would undoubtedly have taken a proper physical and history and been apprised of her previous operation.

Surely, he said, a claim of abdominal distress in the area of a previous operation would have resulted in at least an X-ray, on which the forceps would have been clearly visible.

Lochabay said the complaint establishes that Elameto did not consult with any physican(s) at any time other than those who performed the operation removing the forceps in June 2014 or 14 years after the surgery.

Lochabay said for Elameto to have endured symptoms for 14 years without seeking readily available medical help is not reasonable diligence.

“Therefore, the statute is not tolled and the claim is barred by limitations,” he said.

On co-plaintiff Pedro Pua’s claim for emotional distress and loss of consortium, Lochabay said as Elameto’s claims are barred by limitations, this loss of consortium claim is also barred.

Lochabay said that in the Commonwealth, a legal marriage is a prerequisite to a claim of loss of consortium, as the Commonwealth does not recognize common-law marriage.