University Cover-Up Tolls Statute of Limitations for Decades

• Date: 01 April 2024

Published i n Litigation New s Volume 49, Numbe r 3, Spring 2024 . © 2024 by the Ameri can Bar Asso ciation. Rep roduced with pe rmission. A ll rights rese rved. This inf ormation or any p ortion there of

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parte request, favoring the rights of the

patient over the hospital, and directed

the hospital to allow the patient’s treat-

ing physician to administer the drug on

site.

The hospital appealed, seeking an

emergency stay of the trial court’s

order, suggesting that the drug was

being administered in contravention of

its treatment protocol and would cause

the patient severe liver damage. The

Pennsylvania Superior Court granted

the motion to stay the injunction, but

the patient died before the court could

rule on it.

Despite the issue being mooted by

the patient’s death, the appellate court

elected to resolve the legal question

anyway, ultimately reversing the injunc-

tion. The court held that the patient

“did not have the legal right to either

force the hospital to administer iver-

mectin against the advice of his treat-

ing physicians and [the hospital’s]

treatment protocol or to demand that

[the hospital] grant ICU privileges to

unvetted physicians in order to admin-

ister this treatment on its premises.”

The court explained that “judges

are not doctors [and] cannot practice

medicine from the bench.” The court

further reasoned that there was an

absence of legal authority “to compel

a healthcare provider to administer a

treatment contrary to the provider’s

professional judgment and outside the

standard of care.” The inconclusiveness

of competent medical studies evalu-

ating the ecacy of ivermectin were

considered on appeal when evaluating

the appropriate standard of care and

determined to be unsettled.

On the issue of mootness, the court

explained that “if the issues raised by

an appeal are ‘substantial questions’ or

‘questions of public importance,’ and

are capable of repetition, yet likely to

evade appellate review, then we will

reach the merits of the appeal despite

its technical mootness.” Siding with

the hospital, the court found that the

severity of the issue on appeal—spe-

cif‌ically in the context of the COVID-19

pandemic and its impact on policy in

the area of public health—warranted

adjudication.

Litigation Section leaders vary in

their assessment of the court’s deci-

sion. “The Superior Court appears to

have made a thoughtful, balanced, and

excellent ruling,” opines Fabrice N.

Vincent, San Francisco, CA, cochair of

the Litigation Section’s Business Torts

& Unfair Competition Committee. “The

ruling was inevitable given the una-

nimity of opinion of the leading health

groups on ivermectin being unproven

and inappropriate for COVID-19,” adds

Vincent.

Other Section leaders are less cer-

tain. “The real life-and-death issues in

this case came down to the need for

quick action, as a COVID-19 patient’s

health can take a turn for the worse

on a moment’s notice,” explains David

Sterling, cochair of the Section’s

Health Law Litigation Committee. “It

is impossible to say whether the court

got it right or wrong under the cir-

cumstances,” Sterling concludes, not-

ing that several important issues were

before the court, including “patients’

rights when they are incapacitated

and have no freedom of movement

to another facility, the rights of the

hospital facilities and their protocols,

and the unprecedented circumstances

brought on by a novel, very contagious,

and deadly disease that is the subject

of a worldwide pandemic.”

Both Section leaders applaud the

court’s willingness to decide the issue

despite it being considered techni-

cally moot. “I personally believe it was

appropriate to consider the merits of

the appeal, given the broad range of

public policy issues and because the

issues were, and are, capable of repeti-

tion,” oers Sterling. “It’s so nice the

court ruled despite Mr. Cauman’s sad

death,” Vincent agrees. “That way the

question is much better settled and

future decisions in analogous situations

are much easier to be made.”

University Cover-

Up Tolls Statute

of Limitations for

Decades

By Anna K. Tsiotsi as, Litigation

News Contributing Editor

Victims of sexual abuse by a univer-

sity athletic doctor could bring a Title

IX claim more than 20 years after the

misconduct occurred because the

claimants did not know they had been

abused until decades later when the

university stopped concealing the inci-

dents, according to a federal court of

appeals. ABA Litigation Section leaders

generally agree with the court’s deci-

sion, but some have doubts about the

court’s conclusions regarding what the

plaintis should have known.

In Snyder-Hill v. The Ohio State

University, a group of former stu-

dent athletes and other men involved

with the Ohio State athletics program

alleged that an athletic doctor for the

school sexually abused them during

medical examinations between 1978

and 1998. The abuse included unneces-

sary rectal exams, groping and fondling

genitalia, and drugging and anally rap-

ing victims. In 2018, Ohio State per-

formed an independent investigation of

allegations of the doctor’s sexual mis-

conduct. Following the investigation,

plaintis f‌iled suit in 2021 in the U.S.

District Court for the Southern District

of Ohio against Ohio State claiming

deliberate indierence to sexual harass-

ment under Title IX.

Ohio State claimed that the plain-

tis’ claims were time-barred, as the

two-year statute of limitations for Title

IX claims had run and the plaintis

knew or had reason to know that they

were injured when the abuse occurred.

The plaintis argued that they could

not have known about Ohio State’s role

because it covered up the abuse, and

this cover-up was not discovered until

the university’s investigation started.

The district court agreed with Ohio

State and granted the motion to dis-

miss. The plaintis appealed to the U.S.

Court of Appeals for the Sixth Circuit.

The appellate court reversed and

held that that the “discovery rule”

applies in Title IX cases. The discovery

rule provides that the statute of limita-

tions clock only starts running when a

plainti knows or should have known

certain facts related to their injury. In

so holding, the court explained that the

discovery rule’s purpose is “to protect

plaintis who, through no fault of their

own, lacked the information to bring

a claim.” Applying the discovery rule

ensures that the plaintis whose inju-

ries manifested later, or who could not

discover facts because they were dif-

f‌icult to obtain, would still have a rem-

edy, the court explained.

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