What happens when you find out sponges or other foreign objects were left inside you following surgery but went undiscovered for years? The answer depends on which state you live in. Different states have laws that place time limits on suing doctors and hospitals for malpractice.
Some are more strict than others. The Texas Supreme Court is about to decide whether two cases involving surgical sponges found after nine and eleven years are time barred under the state’s two-year medical malpractice statute of limitations and its statute of repose forbidding any suit after 10 years. The plaintiffs in both cases are challenging the constitutionality of Texas’ rigid statutes as a denial of the right to have access to the courts or open courts provision. Thirty-three other states also have statutes of repose spanning from three to ten years. Thirteen of those states carve out an exception for surgical items left in the body. Texas does not.
The restrictive statute of limitations was passed at the urging of hospitals, doctors and insurers to supposedly lower malpractice insurance rates and attract more doctors to the state. Attorneys for the hospitals say the legislature acted to address a “crisis” in the health care and insurance industries. During argument before the Texas Supreme Court, the hospital’s lawyer urged the court to take this opportunity to not only dismiss these particular cases but to establish an absolute ban on all medical malpractice suits regardless of whether the injured plaintiff could have discovered the injury before the two-year period!
A ruling is not expected on the cases until next year. Until then, anyone going under the knife in Texas may want to take a family friend along in surgery to count those surgical sponges for themselves and not rely on the doctors and nurses.
Richard J. Arsenault, 2011
