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Things Aren't Always As They Appear

By Tim Rector, JD, MBA
Senior Claims Attorney, SVMIC

September


There are numerous stories in religious writings with the object lesson of “Things are not always what they appear,” but that lesson is fitting in the study of the sciences, and I submit as well as in the law. Take for example this scientific experiment: Fill a glass with tap water and drop a penny into the glass. Place a penny on the table next to the glass and compare the two. Are the pennies identical in size, or does one penny look bigger? As light enters the water in the glass, the speed at which it is traveling slows down. The rounded shape of the glass and of the water causes the light to bend outwards. As it bends, it extends the image it surrounds outward slightly as well, making the object appear larger. It works as a magnifier and is an illusion. The lesson here is one reason not to immediately trust what you see.

In this story, a female who was 26 years of age at the time of surgery brought a lawsuit in Tennessee, claiming her abdominal and liver problems were caused by two retained clips on the hepatic duct from her laparoscopic cholecystectomy surgery performed 13 years previously. In 2006, the patient brought a lawsuit against the surgeon who performed that surgery in 1993. The paramount question presented in this case is “did the one-year statute of limitations act as a bar to the plaintiff’s claim?” In most cases, there is a one - or two - year statute of limitations, depending on jurisdiction, which begins on the date the health care provider’s alleged negligence occurred. However, an injury caused by medical malpractice may not always be apparent at the time it occurs. When this happens, there are some exceptions that may change when the statute of limitations period begins to run. Most notably, the discovery rule can apply when an injury caused by medical malpractice is not discovered at the time the error was committed. If so, the statute of limitations may run from the day the injury is discovered. Tennessee medical malpractice cases are subject to the one-year statute of limitations; however, Tennessee also has a three-year statute of repose which bars patients from filing lawsuits after three years have passed since the date of the incident. Not all states have a statute of repose but instead may have an applicable discovery rule that can extend the statute of limitations period. There are two circumstances that fall within exceptions to the statute of repose: (1) a negligent medical provider commits fraud, concealing their actions so the patient cannot discover malpractice; and (2) a medical tool or instrument is unknowingly left inside a patient. In this Tennessee case, the plaintiff relied upon one of the exceptions to the statute of repose to file a lawsuit 13 years after her gallbladder surgery. Plaintiff’s counsel presented facts to give the appearance that the surgeon intentionally or unknowingly failed to remove the clips before concluding the surgery, and the patient first learned that the retained clips were the cause of her injury in 2006. She brought the lawsuit within one year of that discovery.

This surgeon performed an uneventful gallbladder surgery in 1993 on this patient. The patient claimed she did not discover a problem until she developed severe abdominal pain in 2006 and that the cause of her problems was allegedly due to the hepatic clips placed by this surgeon in the 1993 gallbladder surgery. In January 2006, the patient’s abdominal pain became severe, and the patient sought care at a university hospital. In August 2006, surgery was performed to remove the surgical clips determined to have been retained in the original 1993 surgery. The patient spent three days in the hospital and was ultimately cleared of any liver disease.

The surgery in 1993 was described as difficult in the operative report and noted that the cystic artery was very close to the right hepatic duct. The two clips were said to be placed on the cystic artery near the right hepatic duct. The defense acknowledged that the two clips were placed on the right hepatic duct in the surgery performed in 1993. The defense further acknowledged the clips were not intended to be placed on the right hepatic duct. However, there was no proof that the plaintiff sought medical attention from 1993 to 1999 for problems related to the clips.

In 1999, the plaintiff had elevated liver enzymes reported as part of a regular annual physical, and she had an ERCP in September 1999. The plaintiff was briefly admitted to the hospital for abdominal pain following the ERCP. The report from the ERCP did not mention or document clips on the right hepatic duct or any occlusion of that anatomy. The patient was subsequently followed by Dr. Smith[1], a gastroenterologist, in 1999 and 2000. On December 20, 1999, Dr. Smith looked at the ERCP and identified the surgical clips on the right hepatic duct as the medical reason for the elevated alkaline phosphatase. Dr. Smith testified that this information was communicated to the plaintiff in December 1999. Dr. Smith saw the plaintiff again in October 2000, and he recommended no surgical intervention was necessary based on a negative liver biopsy. The patient continued with regular office visits with her primary care physician from 2000 to 2003, reporting a history of right upper quadrant abdominal pain.

By the time the lawsuit was filed in 2006, Dr. Smith had relocated his practice from Tennessee to Iowa. The defense team was able to locate Dr. Smith and obtain a copy of his records related to the treatment of the plaintiff. His records clearly showed the plaintiff was aware in December 1999 that her liver problem was related to the clips on the hepatic duct. The defense team filed a motion for summary judgment arguing the plaintiff knew or had reason to know in December 1999 that the clips were the cause of her elevated liver enzymes which triggered the one-year statute of limitations period within which to file suit; thus, the filing of the suit in 2006 was untimely. The plaintiff’s attorney argued that their client did not have sufficient facts communicated to her in 1999 to place her on reasonable notice of a claim, and she did not know of the injurious effects until her surgery in 2006. The plaintiff’s counsel used subjective arguments regarding his client’s frame of mind in 1999 to minimize the facts of what Dr. Smith told the plaintiff in 1999. The plaintiff took the position she did not have enough information to determine she had a claim at that time. The trial judge denied the motion for summary judgment holding that in order to obtain the benefit of the extension of the normally applicable statute of limitations, the plaintiff’s delay in discovering the injury must have been reasonable, and this was a question for the jury to answer.

The case went to trial. The defense team felt confident the jury would find the plaintiff filed her lawsuit too late and would not have to address whether the standard of care was met or whether the alleged negligence caused the injury. Well, how did the jury decide to handle the question of the statute of limitations? Astonishingly, after four hours of deliberations, the jury skipped over the statute of limitations question but found that the surgeon complied with the standard of care. Interviews of some of the jurors after the trial indicated that most of the jurors believed the plaintiff filed her lawsuit too late, but some jurors did not see it that way. However, all the jurors agreed that the surgeon complied with the standard of care so they found in his favor.

As noted by defense experts, there was no foreign body left by mistake in the patient’s body. The intent was to place the clips in the patient’s body and leave them there permanently. Obviously, the retained clip as a foreign body was a bold theory by the plaintiff which could have been circumvented earlier (and likely prevented the filing of the lawsuit) had the original surgeon advised the patient of the permanent nature of the clips and documented that conversation.

 

[1] The names and locations in this report have been altered.

About The Author

Tim Rector is a Senior Claims Attorney in SVMIC’s Claims Department; he has been with the Company since 2004. Tim received a Bachelor of Science Degree in Economics from Austin Peay State University in 1982 and was a Distinguished Military Graduate in the Army ROTC Program. Tim served as an active duty commissioned officer in the U.S. Army for 21 years, primarily in Cavalry commands. He earned a Master of Business Administration degree with honors from Embry Riddle Aeronautical University in 1990. He graduated from the Nashville School of Law with honors in 1996 earning a Juris Doctorate degree. Tim has held legal positions with Phillips and Ingrum as well as owning his own private practice primarily focused on the defense-side of construction and trucking civil litigation and business formations. Tim has also worked as an adjunct faculty member at Volunteer State Community College and at Draughons Junior College.

The contents of The Sentinel are intended for educational/informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and/or change over time.

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