A patient who underwent surgery only to have a wire mistakenly left inside of them recently had their case dismissed by a California appeals court.
The plaintiff originally agreed to undergo a surgical procedure in July 2012 for the purposes of removing a kidney stone. While the surgery was a success in terms of removing the stone, the defendant doctor accidentally left a piece of wire in the plaintiff’s kidney. The defendant made the plaintiff aware of the error the day after the surgery. Two months later, in September, the plaintiff let the defendant know that a lawsuit would be forthcoming. A surgery took place a month later to remove the wire from the plaintiff’s body but the procedure was unsuccessful. A third and final procedure took place in December 2012 when, ultimately, the plaintiff’s entire kidney had to be removed in order to extricate the wire.
The plaintiff filed his lawsuit against the defendant doctor in July 2013 which was one year after the incident that gave rise to his injury. However, California maintains a one-year window to file a medical malpractice lawsuit meaning that the plaintiff’s initial filing was beyond the statute of limitations. At trial, the plaintiff argued that because two additional surgeries were required in order to remove the wire that was left in his body, the statute of limitations were tolled until the plaintiff could realize the full extent of his injuries which turned out to be the removal of one of his kidneys.
The defendant argued that the statute began to run the moment the plaintiff became aware of the error which was the day after the first surgery. Further, an argument was made that tolling is not possible in the case of a foreign object being left inside the body of a patient when the patient is aware of the misplacement.
While the case was dismissed by the court of appeals, a dissenting opinion was made on the basis that the defendant failed to show that no dispute of fact exists as to whether the statute of limitations precluded the plaintiff’s claim that he negligently performed the second surgery. Because it can be argued that the second surgery caused more harm than the first surgery, the July 2013 filing of the lawsuit would have been timely.
Medical malpractice can have devastating effects that last a lifetime. If you have been injured by a physician’s neglect, attorneys Charles Gilman and Briggs Bedigian will work to get you the full compensation to which you are entitled. Call 800-529-6162 today or contact them online for a free case evaluation. They handle cases in Maryland, Pennsylvania, and Washington, D.C.
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