A man underwent surgery on his right shoulder, and following the operation, a pain pump was used to inject anesthetics directly into the joint of his shoulder. A month later, he complained to the physician who had performed the surgery of continued pain but was reassured that this pain was normal. Though the man claimed that he continued to have problems with his shoulder for years after the surgery, he did not seek further medical attention until just under five years later, when the physician who had performed the surgery diagnosed him as having complete loss of articular cartilage in the shoulder, consistent with glenohumeral chondrolysis.
Almost two years after the diagnosis of complete loss of articular cartilage in the shoulder, the man sued the manufacturer of the pain pump under various theories, alleging that the pain pump caused his condition. He sued in the federal court under diversity jurisdiction governed by the substantive law of Texas. He claimed that the injury began immediately following the surgery. He later filed an amended complaint, in which he limited his causes of action to negligence and product liability claims.
The device manufacturer filed a motion to dismiss for filing beyond the limitations period. In Texas, a two-year statute of limitations applies to personal injury actions. The United States District Court for the Southern District of Texas sua sponte converted the motion to a motion for summary judgment and allowed both parties to supplement the record with additional information. The district court did not permit discovery and granted the device manufacturer's motion for summary judgment. The district court held that the man's failure to investigate his injury resulted in the statute of limitations barring his claims.
The Fifth Circuit United States Court of Appeals vacated the judgment of the district court and remanded for further proceedings because the record was insufficiently developed such that the court could not determine whether the grant of summary judgment was proper. The court reasoned that because the man filed suit six-and-a-half years after his use of the pain pump, his claims were barred unless the discovery rule applied.
Texas law provided that a cause of action accrues when the legal wrong is completed, even if the party is unaware of the wrong. More specifically, negligence claims normally accrue when the duty of ordinary care is breached, and strict liability claims generally accrue on the date of the injury. The discovery rule defers accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the cause of action. The discovery rule only applies when the nature of the injury is both inherently undiscoverable and objectively verifiable. The parties did not dispute that chondrolysis was an objectively verifiable condition.
The man argued that injuries resulting from surgical implants are inherently undiscoverable. The device manufacturer argued that the man's pain pump was not a surgically implanted device. The court found that it was unable to determine on the basis of the record whether the man's injury could reasonably be classified as a surgical-implant case. The record did not reveal if any device remained inside the man's shoulder following surgery, and if it remained, how long it remained. On remand, the man has the burden of proof on this issue, and he must present evidence that chondrolysis is the type of condition that is inherently undiscoverable during the two-year limitations period and that he could not, exercising reasonable diligence, have discovered that he had chondrolysis earlier than two years before he filed suit.
See: Milton v. Stryker Corp., 2014 WL 31393 (C.A.5 (Tex.), January 6, 2014) (not selected for publication in Federal Reporter).
See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements
See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication