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Limiting Med Mal Actions When a Foreign Body Is Left in the Patient
Many states make an exception to the time limitation in which a medical malpractice action may be brought if the cause of action is based on a foreign object left behind in the plaintiff's body. But what if the defendant was not the one who placed the foreign object in the patient? Will the foreign-object exception leave the doctor, nurse or hospital vulnerable to suit years after the patient was treated?
One State's Experience
In May 2003, the Maine Supreme Judicial Court (the Law Court) decided Despres v. Moyer, 2003 ME 41, 827 A.2d 61, a case of first impression addressing the foreign object exception to the state's medical malpractice statute of limitations, found at 24 M.R.S.A. ' 2902. Sec. 2902 places a 3-year limitation on the time in which a malpractice action can be brought, but extends that period if the case involves a foreign object left behind in the body. In such cases, the cause of action does not accrue until the plaintiff knows or should have known of its presence. The case is important both for its interpretation of the governing statute, and for its ruling regarding the sufficiency of evidence required to controvert facts presented on a motion for summary judgment. In reaching a decision regarding the statute's application in a case of first impression, the Law Court looked for guidance not only to the plain language of the statute, legislative intent and related Maine cases, but to case law from other jurisdictions as well.
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