Discovery Rule – Foreign Objects, Failures to Diagnose, and Reasonable Diligence

The textbook example of the discovery rule in action is a foreign object unintentionally left inside a patient during surgery. For example, in Ambers-Phillips v. SSM DePaul Health Center, 459 S.W.3d 901 (Mo., April 28, 2015) during a second surgery it was found that four foreign objects had been left inside the woman’s abdomen during the first surgery. The woman and her husband sued the hospital where the first surgery was performed for failing to account for and remove the four foreign objects during her first surgery. The suit was filed within two years from the date the woman discovered that the four foreign objects had been left in her body. Normally, the discovery rule would toll the statute of limitations until the foreign objects were discovered. However, Missouri has a ten-year statute of repose for foreign object medical malpractice claims. Statutes of repose begin to run on the date of the allegedly tortious act and provide an absolute deadline beyond which suit may not be brought. The claims in this case were time-barred and subject to dismissal because the suit was not filed within ten years after the first surgery when the foreign objects were allegedly left in the woman’s abdomen. Practitioners are cautioned that the discovery rule may be limited by a statute of repose in this way.

In addition to being limited by statutes of repose, tolling via the discovery rule can be limited by other types of statutes. For example, New York’s statutory foreign object exception provides that although a medical malpractice lawsuit must normally be brought within two years and six months of the wrong complained of, where the action was based upon the discovery of a foreign object in the body of the patient, it may be commenced within one year of the date of the discovery or of the date of discovery of facts that would reasonably lead to this discovery, whichever is earlier. However, New York’s statutory foreign object exception does not apply to chemical compounds, fixation devices, or prosthetic aids or devices.

The fixation devices exception to the foreign object exception was analyzed in detail in Walton v. Strong Memorial Hospital, 25 N.Y.3d 554 (N.Y. June 10, 2015). In that case a three-year-old boy underwent surgery to correct a congenital heart malformation. Seventeen years later, an echocardiogram detected small mobile filamentous masses in the young man’s heart, which were identified as possibly suture material, although clots could not be ruled out. Five and a half years later, he underwent a procedure on his heart. The echocardiogram performed in conjunction with the procedure revealed a regular-appearing left atrial foreign body. The young man underwent exploratory surgery and plastic tubing was discovered in his heart.

The young man sued three hospitals and five doctors. The complaint alleged that, during the surgery to correct his congenital heart malformation when he was three years old, the hospital and doctors negligently left a foreign body in his heart. The complaint explained that he could not have reasonably discovered the presence of this foreign body prior to the echocardiogram performed in conjunction with the procedure twenty-two and a half years later. Although the young man sued within one year of his discovery of the tubing, the doctors and hospitals took the position that the catheter was a fixation device, not a foreign object, because it was intentionally placed inside the boy during the operation and served a continuing medical purpose beyond the procedure itself. The lower courts held for different reasons that the catheter fragment was a fixation device. The Court of Appeals of New York reversed holding that the catheter fragment was not a fixation device, and thus did not preclude the foreign object exception to the statute of limitations for medical malpractice claims.

The discovery rule also has been invoked in medical malpractice actions other than those involving a foreign object unintentionally left inside a patient after surgery. Failure to timely diagnose cases can raise different types of discovery rule issues. For example, in Dagley v. Murphy, 85 Mass.App.Ct. 1105 (Mass.App.Ct., March 11, 2014), review denied, 468 Mass. 1104 (Mass., June 10, 2014) (not designated for publication) the court analyzed the issue of whether a party has sufficient notice of causation for the claim to accrue. The test is whether, based on the information available to the plaintiff, a reasonably prudent person in the plaintiff’s position should have discovered the cause of his or her injuries.

A woman with a family history of breast cancer underwent frequent mammograms and other screening procedures for breast cancer. Eventually, she was diagnosed with stage IIIA breast cancer that had spread to her lymph system. The woman underwent treatment for breast cancer including chemotherapy. Over a year after her diagnosis she began to attend breast cancer survivor meetings and therapy sessions.

Three and a half years after her diagnosis, the woman sued the surgeons and their practice group for the negligent delay in the diagnosis of her breast cancer. The surgeons filed a motion for summary judgment on the ground that her claim was barred by the three-year statute of limitations. The woman argued that that the claim was not time-barred because she did not know, and with reasonable diligence could not have known, that she had been injured by the surgeons’ failure to diagnose until she began attending breast cancer survivor meetings and therapy sessions two years prior to filing the suit. The trial court granted the healthcare providers’ motion for summary judgment holding that the woman was on notice at the time she was diagnosed that a missed diagnosis or a failure to follow-up on imaging studies or screenings may have caused a harmful delay in the diagnosis of her breast cancer. The Appeals Court of Massachusetts reversed holding that a genuine issue of material fact existed as to when a reasonable person in the woman’s position would or should have known that her injury was caused by the negligence of her healthcare providers.

In addition to the issue of whether a plaintiff has sufficient notice of causation for the claim to accrue, failure to diagnose cases employ the discovery rule to delays in naming a defendant. For example, in Holaday v. Moore, 169 So.3d 847 (Miss., April 30, 2015) the court considered whether the plaintiffs had reason to know, based solely on the appearance of a doctor’s name in the medical records, of potential medical negligence claims against the doctor or whether those claims remained concealed until the extent of the doctor’s involvement in the patient’s treatment was revealed by a defendant during his deposition. The Supreme Court of Mississippi affirmed the trial court’s denial of the doctor’s motion for summary judgment. The court held that genuine issues of material fact existed as to whether the discovery rule operated to toll the two-year statute of limitations, even though the doctor’s name appeared on the man’s medical records.

The discovery rule requires that a plaintiff must be reasonably diligent in investigating his or her injuries. The court in Lyas v. Forrest General Hosp., 177 So.3d 412 (Miss., Oct. 29, 2015) analyzed the issue of whether a widow, using reasonable diligence, should have discovered her husband’s final death certificate, which was the first indication that there was a potential cause of action. Almost two years after the husband’s death, the deputy coroner filed the final death certificate, which listed the man’s cause of death as consistent with meprobamate and soma (carisoprodol) overdose. The widow sued the hospital which ran the in-patient mental health facility under the Mississippi Tort Claims Act (MTCA). The complaint alleged that the hospital wrongfully had caused the man’s death by giving him almost twice the daily recommended dosage of Soma. The hospital filed a motion for summary judgment arguing that the woman had failed to meet the one-year statute of limitations for bringing her claims. The woman responded with evidence that included that she had contacted several people in order to obtain her husband’s final death certificate. She testified that she had tried to call the deputy coroner at the county coroner’s office, but nobody answered the phone. She also testified that she had contacted the director of the funeral home that handled the arrangements for her husband, and she contacted the chief of the county sheriff’s department. This person told her that two years after her husband’s death there was no final death certificate and that the cause of his death was still “pending.” The Supreme Court of Mississippi reversed the trial court’s grant of summary judgment in favor of the hospital. The court held that a genuine issue of material fact existed as to whether the discovery rule tolled the one-year statute of limitations prescribed by the MTCA, precluding summary judgment.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more details about Ambers-Phillips v. SSM DePaul Health Center, 459 S.W.3d 901 (Mo., April 28, 2015), see the Scalpel Weekly News, May 11, 2015.

For more details about Walton v. Strong Memorial Hospital, 25 N.Y.3d 554 (N.Y. June 10, 2015), see the Scalpel Weekly News, June 22, 2015.

For more details about Dagley v. Murphy, 85 Mass.App.Ct. 1105 (Mass.App.Ct., March 11, 2014), review denied, 468 Mass. 1104 (Mass., June 10, 2014) (not designated for publication), see the Scalpel Weekly News, March 24, 2014.

For more details about Holaday v. Moore, 169 So.3d 847 (Miss., April 30, 2015), see the Scalpel Weekly News, May 11, 2015.

For more details about Lyas v. Forrest General Hosp., 177 So.3d 412 (Miss., Oct. 29, 2015), see the Scalpel Weekly News, November 9, 2015.

See also Medical Law Perspectives January 2014 Report: Prescription Painkillers: Risks for Patients, Pharmacists, and Physicians

See also Medical Law Perspectives May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

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