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Stent Not Timely Removed Tolls Limitations Under Foreign Body Exception


A man was injured by a gunshot and he underwent emergency abdominal surgery to repair the injury. During the procedure, surgeons implanted a biliary stent. The man was unconscious or otherwise incapacitated secondary to his injuries when the stent was implanted. None of the health care providers involved in his gunshot wound treatment had informed him of its placement, the fact it was designed to be temporary, or the need to monitor or remove it.

 

Over fourteen years later he sought treatment for abdominal pain. Blood tests indicated his liver enzyme level was consistent with biliary obstruction and follow-up imaging revealed the existence of the biliary stent in his body. The doctors treating him for the abdominal pain explained to him that the biliary stent was designed to be temporary and should have been explanted generally between three to six months after being placed, but in no event should it have been allowed to remain for over 14 years. The stent lost any efficacy it may have had within one year of placement and had at some point begun to disintegrate and had already migrated from the site where it was originally placed. The stent was removed less than 24 hours after it was discovered.

 

The man sued the health care providers who treated him in relation to his gunshot wound injuries. The man alleged that the providers were professionally negligent in not timely removing the stent, or informing him of its placement and the fact it was designed to be temporary. The health care providers filed a demurrer on the ground that the claims were barred by the three-year statute of limitations for medical negligence claims. The man argued that the statute of limitations had been tolled under the “foreign body” exception of California Code of Civil Procedure section 340.5 (section 340.5).

 

Additionally, the man sued the health care providers for failure to provide access to his medical records as required by California Health and Safety Code sections 123100 et seq. The health care providers filed a demurrer on this claim on the grounds the man failed to adequately allege damages resulting from the asserted violation, the health care providers did not violate the law because it had no duty to retain his records beyond seven years, and the statute did not cover records requested by a patient's attorney for purposes of bringing a civil action. The Alameda County Superior Court sustained the health care providers’ demurrers without leave to amend. The court also held that an object intentionally left in the body for a therapeutic purpose following the completion of a medical procedure does not qualify as a “foreign body” for purposes of the tolling exception.

 

California’s First District Court of Appeal, Division 1, reversed in part and affirmed in part. Specifically, the court held that leaving a biliary stent in the man's body triggered the “foreign body” tolling provision. However, the health care providers’ denial of the man's request for records did not violate the Patient Access Law (PAL) and the PAL did not authorize an award of prelitigation attorney fees or investigation costs as consequential damages.

 

Leaving a biliary stent in the man's body triggered the “foreign body” tolling provision. The Medical Injury Compensation Reform Act (MICRA) statute of limitations codified the California common law “foreign object” tolling rule. MICRA’s “foreign body” tolling rule applies to “foreign bodies” even though they had a “therapeutic purpose or effect” at the time they were placed in the patient so long as it can be shown they were allowed to remain there too long. The health care providers’ act of leaving a biliary stent in the man's body for years after it lost any effectiveness and should have been explanted triggered the MICRA statute of limitations tolling rule for “the presence of a foreign body” with “no therapeutic or diagnostic purpose,” even if the stent served a therapeutic purpose for months after it was implanted. Therefore, his negligence claims should not have been dismissed.

 

The health care provider’s denial of the man’s request for records did not violate the PAL. Health and Safety Code section 123110, subdivision (a) provided that any “adult patient” or “patient representative” was entitled to inspect patient records upon presenting to the health care provider a written request for those records and upon payment of reasonable clerical costs incurred in locating and making the records available. The attorneys made the request on the man’s behalf. The man’s attorneys were neither “patients” nor “patient representatives” entitled to obtain his medical records under the PAL. The PAL was not intended to provide redress for patients whose attorneys were seeking access to medical records in contemplation of litigation against the health care provider. Instead, such access was governed by California Evidence Code section 1158.

 

California Evidence Code section 1158 did not authorize an award of prelitigation attorney fees or investigation costs as consequential damages. The remedy for a violation of the California Evidence Code was to bring a proceeding to enforce its requirements. California Evidence Code section 1158 contemplates no remedy other than the medical records the attorney was seeking, the attorney fees and expenses he or she reasonably incurred in the litigation to enforce the statute, and any excess copying charges imposed. Section 1158 does not authorize an award of prelitigation attorney fees or investigation costs as consequential damages for the failure to timely provide access to medical records.

 

California’s First District Court of Appeal, Division 1, reversed the district court’s dismissal of the man’s negligence claims, but affirmed the dismissal of the man’s claims related to access to the medical records.

 

See: Maher v. County of Alameda, 2014 WL 605904 (Cal.App. 1 Dist., February 18, 2014) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

 

See also Medical Law Perspectives, November 2012 Report: Liability for Electronic and Other Medical Record Information Disclosure

 

 

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