Suing a Doctor for Not Ordering a Biopsy Sooner (Cancer)

In Voegtlin v. Perryman, 977 S.W.2d 806, 810 (Tex.App.--Fort Worth 1998, no writ), the plaintiff had breast cancer and sued her physician for failing to order a biopsy sooner. Faced with a limitations defense, she argues a tolling theory. In support, she points to her testimony that "she 'did not really think about' the fact that they might have a potential claim against [the physician]" until after her chemotherapy was completed. The court concluded that this testimony was not sufficient to toll limitations and, because the plaintiffs "had opportunity to wrongly or negligently fail to recognize" the basis of a suit, at a time beyond the two-year period, her suit was not maintainable. Voegtlin, 977 S.W.2d at 811.