Earlier this month, a Michigan Appeals Court ruled that the family of a deceased man who had a surgical sponge left inside of his body, near his heart, for eight years, is able to sue the doctor and the hospital where the surgery occurred.
The man apparently had surgery at Covenant HealthCare in Saginaw in 2003, and sued the hospital in 2012, after the sponge was found. The suit was dismissed on the grounds that the statute of limitations had already run, though the attorney representing his family—he died in 2015—argued that the statute of limitations did not apply in the case.
The rationale for the ruling, at least according to the characterization an appellate judge who wrote a dissenting opinion, is that because state law says fraudulent action can bar the ordinary tolling of the statute of limitations, and because the physician failed in this case to abide by an asserted duty to disclose known malpractice to the patient, the statute of limitations did not actually toll and the case may go forward. Without reading the case, it isn’t clear how accurate this characterization of the ruling is.
What is clear is that judges can and do occasionally disagree on the interpretation of state law in medical malpractice litigation. This is why it is so important for plaintiffs to work with an experienced medical malpractice attorney to ensure that issues are carefully preserved on the record for later appeal, if necessary. Ideally, of course, the case is properly disposed of at the trial level, but in some cases it is necessary to appeal an improper ruling.
In a future post, we’ll take a closer look at the medical malpractice statute of limitations issue in the above case.