The North Carolina Court of Appeals recently ruled that a medical malpractice lawsuit stemming from the latent discovery of a surgical sponge was properly dismissed for a failure to file within the statute of limitations period.
Normally in medical malpractice lawsuits, patients have just three years to file a lawsuit from the date of the alleged medical error. However, if the injury could not have been discovered right away, the plaintiff may have one year to file a lawsuit from the date the injury was discovered – or reasonably could have been discovered, assuming that is within four years of the alleged medical malpractice. Even so, cases involving retained surgical sponges – as with all other foreign objects unintentionally left in one’s body after surgery – are unique. In those instances, the lawsuit has to be filed either within:
- One year of the date on which the object was discovered, or
- Within 10 years of the date the surgical error was made.
In the recent case of Hunter v. Niblack, the issue before the North Carolina Court of Appeals was whether a plaintiff’s claim for a retained surgical sponge was timely, per the statute. The question in these cases is usually “at which point was it reasonable that the object should have been discovered?”
According to court records, the defendant performed a total vaginal hysterectomy in May 2007. The plaintiff subsequently experienced pain and discomfort in both her vaginal and pelvic regions. In response to this, the physician performed a laparoscopy and ultrasound in April 2008.
After struggling with ongoing problems of incontinence, the plaintiff underwent a bladder sling operation. Then, in November 2013, the plaintiff underwent a CT scan in which doctors noticed there was a 3.5 cm mass in her pelvis. A technician indicated it was “suspicious for a retained surgical sponge,” and this was possibly the cause of the inflammatory reaction. Following another laparoscopy, the presence of a surgical sponge was confirmed, and the item was located and removed in January 2014.
In January 2015, the plaintiff filed a complaint against the doctor who performed her hysterectomy and the hospital at which she underwent the procedure. She alleged the surgical sponge had been left in her body in 2007.
The plaintiff later dismissed all of her claims against the hospital.
The remaining defendant doctor filed a motion for summary judgment, alleging there was no dispute as to the material facts, but the defendant was entitled to judgment as a matter of law because the plaintiff’s action was filed outside the applicable statutes of limitations and repose. However, the plaintiff alleged that she hadn’t discovered that her pain in her pelvis was connected to a sponge left inside her body during a 2007 surgery until the 2014 laparoscopy.
The trial court sided with the defendant and found that there was no genuine dispute of fact as to the time limits and that the lawsuit was filed outside the statute of limitations.
The plaintiff appealed, but the appellate court affirmed.
The court ruled it was not the 2014 laparoscopy that was the point at which the plaintiff reasonably should have known about the mass, but instead during the 2013 CT scan. Since she failed to file her complaint by 2014, her claim was not timely filed and was therefore barred.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Hunter v. Niblack, Nov. 15, 2016, North Carolina Court of Appeals
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