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One of the more common–and frightening–forms of medical malpractice occurs when a doctor manages to somehow leave a “foreign object” inside of a patient. Depending on the type and nature of the object, the patient may suffer serious, life-threatening complications weeks, months, or even years after the initial surgery. And once the patient learns about the foreign object, the legal clock starts ticking immediately to bring a malpractice claim against the negligent doctor.
Appeals Court: Hernia Mesh May Qualify as “Foreign Object”
Ohio law governing the time limits of medical malpractice lawsuits is quite complex. A recent decision from the Eighth District Court of Appeals here in Cleveland, Vucsco v. Cleveland Urology Associates, Inc., demonstrates just how such time limits can threaten a viable malpractice claim before it is even heard in court. Fortunately, this particular decision resulted in a favorable outcome for the malpractice victim.
The plaintiff in this case required hernia surgery, which the defendant performed in March 2010. Four years later, the plaintiff returned to the defendant, complaining of “pain, irritation, and bleeding” from an abscess caused by the surgery. A year later, in November 2015, the abscess ruptured.
What happened next is a critical point in the plaintiff’s subsequent medical malpractice claim. The plaintiff said there was a “gauze-like material” seen “protruding from the abscess.” The defendant allegedly removed this material and put it in the trash. The plaintiff’s wife then recovered the material. An expert witness retained by the plaintiff later said the material was a “foul-smelling foreign body” that was likely a piece of hernia mesh implanted during the 2010 hernia repair surgery. The defendant denied the material was hernia mesh and claimed he “had never seen the object being presented by the plaintiffs.”
So why does any of this matter? Well, the plaintiff filed his lawsuit in November 2016, just under one year after the defendant removed the alleged hernia mesh. The defense nevertheless argued the lawsuit was barred by Ohio’s statute of repose. This is a state law that says a victim normally cannot file a medical malpractice lawsuit more than 4 years after the “occurrence” giving rise to the claim. Here, the defense argued the 4-year clock started to run on the date of the original hernia repair surgery in 2010, meaning the plaintiff’s right to sue expired in 2014.
There is an exception to the four-year rule, however, when the claim is based on allegations the doctor left a “foreign object” in the victim’s body. In that case, the statute of repose is extended to one year after the discovery of the object. Under this exception, the plaintiff’s lawsuit could proceed.
But the trial court determined the exception did not apply, holding there was “no evidence that a ‘foreign object’ was negligently left in the [plaintiff’s] body.” The Court of Appeals disagreed. It noted state law did not expressly define what qualifies as a “foreign object.” And while that term normally applies to items like surgical tools, the appeals court said “other items may constitute foreign objects depending on the circumstances involved,” including the alleged hernia mesh in this case.
Contact the Cleveland Medical Malpractice Lawyers at Tittle & Perlmuter Today
Doctors and hospitals will use every legal tool available to them to avoid liability for a malpractice claim. That is why if you are the injured patient, it is imperative you work with an experienced Cleveland medical malpractice attorney who strives to make the law work for you and not against you. Call Tittle & Perlmuter at (216) 308-1522 if you need to speak with an attorney today.