More than a dozen times every single day, a doctor in the U.S. sews up his or her patient with sponges and other supplies still inside the patient’s body. Yet, this type of error is what is known in the community as “never event” – as in, it’s never supposed to happen.
And yet, here we are, with thousands of people suffering these injuries every year. Many of those cases involve gauzy material known as surgical sponges. If patients are lucky, the mistake is caught early. But even then, at minimum, he or she has to undergo corrective surgery, which is invasive and carries many of its own risks. In other situations, plaintiffs may suffer for years and not know the cause. They may become violently ill, suffer permanent disability and even death.
In a case recently out of Connecticut, Cefaratti v. Aranow, a woman sought to hold accountable the surgeon who had left a sponge inside her during gastric bypass surgery years earlier. Although there is a statute of limitations on medical malpractice cases, there are exceptions made when discovery of the problem is delayed because the plaintiff did not realize there was an injury or its cause or who was at-fault. Even then, there is sometimes a firm cut-off date, known as the “statute of repose.”
For example in South Carolina, claimants have three years from the date of the act or omission that gave rise to the lawsuit – or from the time it was reasonably discovered. However, we also have a six-year statute of repose that holds that once that six-years has passed, your right to file a medical malpractice lawsuit is forever lost – even if you didn’t know and could not have known you were harmed by medical malpractice at that time. There are only a few rare exceptions.
So back to the Cefaratti case. Plaintiff was diagnosed as morbidly obese and underwent gastric bypass surgery in December 2003. After that surgery, she had several follow-up appointments, all the way up to 2009. About one year after her surgery, she started to experience discomfort in her abdomen, explaining she felt like something was “caught” on her ribs whenever she tried to bend over. She felt stabbing sensations and as if something was twisting inside her. She described these sensations to the doctor at each appointment, except the first two.
Then in 2009, plaintiff was diagnosed with breast cancer. As part of her treatment for this health issue, she underwent a CT scan of her chest, abdomen and pelvis. It was then that the surgical sponge in her abdomen was discovered.
She then met with the original surgeon – in September 2009 – who surgically removed the sponge.
Less than a year later, she filed a lawsuit against that doctor, citing medical malpractice. He filed a motion for summary judgment, arguing the statute of limitations had passed, as the three-year statute of repose had already expired. Plaintiff countered that argument by citing the continuing course of treatment doctrine. This doctrine would toll the statute of limitations if plaintiff could prove:
- She had a condition that required ongoing treatment or monitoring
- Defendant provided that monitoring/ treatment for the medical condition after the alleged negligent conduct;
- Plaintiff brought action within appropriate statutory period after the date of treatment.
The whole idea is for patient’s to be able to receive corrective treatment from the individual who would most know his or her medical history and how to address the problem.
Although trial court granted that motion for summary judgment, the appeals court reversed and the Connecticut Supreme Court recently affirmed, finding the continuing course of treatment doctrine applied and tolled the normal statute of limitations.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Cefaratti v. Aranow, June 14, 2016, Connecticut Supreme Court
More Blog Entries:
Jimenez v. Roseville City School District – School Injury and Lack of Supervision, June 7, 2016, Greenville Medical Malpractice Lawyer Blog