Limiting Med Mal Actions When a Foreign Body Is Left in the Patient

In DePres, the plaintiff had an upper molar extracted by her general dentist. The extraction left a hole, or fistula, that connected the now-empty tooth socket with the sinus immediately above it. When the fistula did not heal properly, her dentist referred the plaintiff to the defendant, an oral surgeon. Before surgically closing the fistula, the oral surgeon detected and removed several pieces of foreign matter from the plaintiff's sinus. The fistula connecting the tooth socket and sinus was the only opening through which the matter removed by the defendant could have entered the plaintiff's sinus.

The patient returned to the defendant on two occasions complaining that the stitches placed to close the fistula had fallen out, and the defendant replaced them. After the surgery, the plaintiff continued to experience pain and pressure in the same sinus from which the defendant had earlier removed foreign matter, so the defendant referred her to an ear, nose and throat specialist who, after performing diagnostic studies, removed additional foreign matter from the same sinus. The plaintiff did not introduce any facts to suggest that any of the foreign matter removed by the specialist originated with the defendant. At no time did the defendant place anything in her sinus, and x-rays confirmed that the radiopaque dressing he used did not migrate into the plaintiff's sinus. The plaintiff also offered no evidence that the general dentist had placed anything into her sinus.

The plaintiff brought suit after the expiration of the 3-year medical malpractice statute of limitations regarding her treatment by the defendant, but within 3 years from the time of the surgery performed by the ear, nose and throat specialist. She initially claimed that the defendant had simply failed to properly clean out her sinus, but argued that she was nevertheless entitled to circumvent the usual 3-year statute of limitations because the presence of foreign matter at the site where the defendant had originally performed surgery brought into play the foreign-object exception to the statute.

The defendant moved for summary judgment based on untimely filing, arguing that because he was not the source of the foreign matter ultimately removed from plaintiff's sinus, the foreign-object exception to the statute of limitations did not apply. Sensing a dead end, the plaintiff modified her argument to claim that the case was not ripe for summary judgment because the question whether the defendant was the source of the foreign matter ultimately removed from her sinus by the ear, nose and throat specialist should proceed to a jury trial.

The trial court was thus faced with the following two issues: 1) Whether the foreign-object exception to the statute of limitations set forth at 24 M.R.S.A. ' 2902 works to circumvent the usual 3-year statute of limitations when the foreign object in question was not placed in the patient by the physician sued; and 2) Whether, in seeking to defeat a motion for summary judgment, the plaintiff's statement that she did not put anything into her own sinus was sufficient to controvert the defendant's assertions that he did not put anything in her sinus and that no item originating with him migrated into her sinus.

Originally, the Superior Court agreed with the plaintiff and denied the defendant's motion for summary judgment, holding that because both the plaintiff and the defendant denied being the source of the foreign matter, there was a genuine issue of material fact that precluded granting summary judgment to the defendant. On motion for reconsideration, however, the Superior Court granted the factual portion of the defendant's motion and held that the plaintiff's mere denial that she was not the source of the foreign matter was insufficient to controvert the defendant's denial that he had placed anything in her sinus and left it behind. The Superior Court also found, however, that the statute and case law governing the question of whether the plaintiff could circumvent the 3-year statute of limitations where the defendant was not the source of the foreign matter at issue were unclear, and granted the defendant's motion to report the legal question to the Law Court for resolution.

The Maine Supreme Judicial Court Addresses a Question of First Impression

In its original decision on March 26, 2003, a unanimous Law Court agreed with the Superior Court's first decision and held that because both the plaintiff and the defendant denied being the source of the foreign matter, there was a genuine issue of material fact that precluded a grant of summary judgment. The Law Court declined to reach the legal question regarding the definition of a foreign object in the context of the medical malpractice statute of limitations.

On motion for reconsideration, a unanimous Law Court withdrew its decision, however, and found for the defendant in all respects. Of particular import in the court's decision with regard to summary judgment practice were two points. First, the plaintiff did not submit competent evidence to controvert the defendant's assertions that he did not put anything into her sinus, and no item originating with the defendant migrated into her sinus. Second, the plaintiff's claim that she did not put anything into her own sinus was deemed insufficient on a motion for summary judgment to controvert defendant's material facts.

Moving on to the foreign-object exception to the limitations period, the Law Court found the legal question raised to be one of first impression in Maine and one that was capable of frequent repetition. There was no clear guidance in the statute itself. The law makes an exception for “the leaving of a foreign object in the body,” but does not say if this refers only to physicians (or other health care providers) who have placed the foreign object in question into the patient or, alternatively, also to third parties from whom the object originated, including the patient or a previous physician.

The defendant argued strenuously against the second interpretation because if accepted, the foreign object exception would apply to extend the statute of limitations beyond the usual 3 years in a wide variety of cases including the following examples: 1) An employee in an industrial accident finds bits of metal embedded in his arm. After diagnostic studies, most but not all of the metal is removed. Under the plaintiff's definition, this would no longer be a “negligent detection” case subject to the usual 3-year statute of limitations, but would automatically convert, because of the presence of “foreign matter,” into a “foreign object” case with a theoretically open ended statute of limitations; 2) A patient who has been treated by a general practitioner for a number of years later discovers a needle that was left inside from a surgery by a different doctor many years prior. Again, the plaintiff's definition would apply the foreign-object exception to the general practitioner's failure to detect the needle from the earlier surgery; and 3) A child inserts two toy gear shifts into her nose and the emergency room physician detects and removes only one. The plaintiff's definition would characterize the remaining gear shift as a “foreign object,” even though it did not originate with and was not placed in the child by the emergency room physician.

In addressing the Law Court's concern that a plaintiff not be left without a remedy if the defendant's interpretation was adopted, the defendant argued that in each of the scenarios depicted above a plaintiff may still bring a claim for negligence, but not after the expiration of the usual 3-year statute of limitations. The Law Court found little assistance from the legislative history as well, except for the obvious intent to address the recent proliferation of medical malpractice claims and the resulting rise in malpractice premiums. The Law Court then turned its attention to an overview of relevant case law.

Maine and Other States' Courts Agree

After lengthy debate, and recognizing the decision as a significant departure from the prior rule, the Law Court first recognized the foreign object exception to the medical malpractice statute of limitations in Myrick v. James, 444 A.2d 987 (Me. 1982). A key consideration that persuaded the Law Court to deviate from the general accrual rule and embrace the foreign object exception in that case, with regard to the claim against the original surgeon, was the unique situation that occurs during a surgical procedure where “the surgeon bears the responsibility for exercising the ultimate control, in a supervisory sense at least, for placing objects in and removing them from the patient's body during surgery.” This scenario was at the heart of the decision in Myrick and was the justification for the departure from the prior rule.

Subsequent cases confirmed that the medical malpractice discovery rule was reserved for foreign objects only, and not for cases claiming negligent diagnosis, particularly where such diagnosis rested on professional judgment or discretion. See Choroszy v. Tso, 647 A.2d 803 (Me. 1994) (Physician's motion to dismiss patient's medical malpractice action based on the statute of limitations granted even where patient did not discover a tumor that the physician had failed to detect or diagnose until after the expiration of the statute of limitations); Dasha v. Maine Medical Center, 665 A.2d 993 (Me. 1995) (Equitable principles did not estop the defendant hospital from pleading the statute of limitations to bar the plaintiff's action even where the hospital's negligent misdiagnosis and treatment of the plaintiff's brain caused damage such that the plaintiff was deprived of the ability to recognize and timely file cause of action).

Cases from other jurisdictions provided important guidance as well for the Despres decision, where courts refused to extend the foreign-object exception to instances where the physician sued did not introduce the foreign objects into the patients. See, eg, Dalby v. Banks, 264 S.E.2d 4 (Ga. 1980) (3-year statute of limitations for negligence claims not extended by foreign-object exception where the patient came to the doctor with ceramic shards embedded in her hand, some of which doctor failed to remove); Garrett v. Brooklyn Hosp., 471 N.Y.S.2d 621 (N.Y. App. Dir. 1984) (a foreign object in the patient's body before she entered the hospital could not be basis for extension of time to file suit). (But see Miller v. Jacoby, 145 Wn.2d 65 (Wash. 2001) (holding that a professional negligence case may proceed against a doctor for leaving in a patient's body part of a Penrose drain that a previous doctor had intentionally placed there for a medical purpose; court opined that drain part became a foreign object when the second doctor, who had been alerted to the presence of the drain, inadvertently left part of it in surgical patient).)

The Law Court was persuaded that the legislative intent and relevant case law did not support expanding the foreign-object exception to instances when a third party — including a patient or previous physician — inserts foreign matter into the patient. It agreed with the defendant in finding that any such interpretation would threaten to swallow the rule in all cases involving foreign matter, regardless of the original source. The Law Court therefore concluded that if a physician has not inserted the foreign object in question into the patient, the exception to the statute of limitations does not apply.

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.

In DePres, the plaintiff had an upper molar extracted by her general dentist. The extraction left a hole, or fistula, that connected the now-empty tooth socket with the sinus immediately above it. When the fistula did not heal properly, her dentist referred the plaintiff to the defendant, an oral surgeon. Before surgically closing the fistula, the oral surgeon detected and removed several pieces of foreign matter from the plaintiff's sinus. The fistula connecting the tooth socket and sinus was the only opening through which the matter removed by the defendant could have entered the plaintiff's sinus.

The patient returned to the defendant on two occasions complaining that the stitches placed to close the fistula had fallen out, and the defendant replaced them. After the surgery, the plaintiff continued to experience pain and pressure in the same sinus from which the defendant had earlier removed foreign matter, so the defendant referred her to an ear, nose and throat specialist who, after performing diagnostic studies, removed additional foreign matter from the same sinus. The plaintiff did not introduce any facts to suggest that any of the foreign matter removed by the specialist originated with the defendant. At no time did the defendant place anything in her sinus, and x-rays confirmed that the radiopaque dressing he used did not migrate into the plaintiff's sinus. The plaintiff also offered no evidence that the general dentist had placed anything into her sinus.

The plaintiff brought suit after the expiration of the 3-year medical malpractice statute of limitations regarding her treatment by the defendant, but within 3 years from the time of the surgery performed by the ear, nose and throat specialist. She initially claimed that the defendant had simply failed to properly clean out her sinus, but argued that she was nevertheless entitled to circumvent the usual 3-year statute of limitations because the presence of foreign matter at the site where the defendant had originally performed surgery brought into play the foreign-object exception to the statute.

The defendant moved for summary judgment based on untimely filing, arguing that because he was not the source of the foreign matter ultimately removed from plaintiff's sinus, the foreign-object exception to the statute of limitations did not apply. Sensing a dead end, the plaintiff modified her argument to claim that the case was not ripe for summary judgment because the question whether the defendant was the source of the foreign matter ultimately removed from her sinus by the ear, nose and throat specialist should proceed to a jury trial.

The trial court was thus faced with the following two issues: 1) Whether the foreign-object exception to the statute of limitations set forth at 24 M.R.S.A. ' 2902 works to circumvent the usual 3-year statute of limitations when the foreign object in question was not placed in the patient by the physician sued; and 2) Whether, in seeking to defeat a motion for summary judgment, the plaintiff's statement that she did not put anything into her own sinus was sufficient to controvert the defendant's assertions that he did not put anything in her sinus and that no item originating with him migrated into her sinus.

Originally, the Superior Court agreed with the plaintiff and denied the defendant's motion for summary judgment, holding that because both the plaintiff and the defendant denied being the source of the foreign matter, there was a genuine issue of material fact that precluded granting summary judgment to the defendant. On motion for reconsideration, however, the Superior Court granted the factual portion of the defendant's motion and held that the plaintiff's mere denial that she was not the source of the foreign matter was insufficient to controvert the defendant's denial that he had placed anything in her sinus and left it behind. The Superior Court also found, however, that the statute and case law governing the question of whether the plaintiff could circumvent the 3-year statute of limitations where the defendant was not the source of the foreign matter at issue were unclear, and granted the defendant's motion to report the legal question to the Law Court for resolution.

The Maine Supreme Judicial Court Addresses a Question of First Impression

In its original decision on March 26, 2003, a unanimous Law Court agreed with the Superior Court's first decision and held that because both the plaintiff and the defendant denied being the source of the foreign matter, there was a genuine issue of material fact that precluded a grant of summary judgment. The Law Court declined to reach the legal question regarding the definition of a foreign object in the context of the medical malpractice statute of limitations.

On motion for reconsideration, a unanimous Law Court withdrew its decision, however, and found for the defendant in all respects. Of particular import in the court's decision with regard to summary judgment practice were two points. First, the plaintiff did not submit competent evidence to controvert the defendant's assertions that he did not put anything into her sinus, and no item originating with the defendant migrated into her sinus. Second, the plaintiff's claim that she did not put anything into her own sinus was deemed insufficient on a motion for summary judgment to controvert defendant's material facts.

Moving on to the foreign-object exception to the limitations period, the Law Court found the legal question raised to be one of first impression in Maine and one that was capable of frequent repetition. There was no clear guidance in the statute itself. The law makes an exception for “the leaving of a foreign object in the body,” but does not say if this refers only to physicians (or other health care providers) who have placed the foreign object in question into the patient or, alternatively, also to third parties from whom the object originated, including the patient or a previous physician.

The defendant argued strenuously against the second interpretation because if accepted, the foreign object exception would apply to extend the statute of limitations beyond the usual 3 years in a wide variety of cases including the following examples: 1) An employee in an industrial accident finds bits of metal embedded in his arm. After diagnostic studies, most but not all of the metal is removed. Under the plaintiff's definition, this would no longer be a “negligent detection” case subject to the usual 3-year statute of limitations, but would automatically convert, because of the presence of “foreign matter,” into a “foreign object” case with a theoretically open ended statute of limitations; 2) A patient who has been treated by a general practitioner for a number of years later discovers a needle that was left inside from a surgery by a different doctor many years prior. Again, the plaintiff's definition would apply the foreign-object exception to the general practitioner's failure to detect the needle from the earlier surgery; and 3) A child inserts two toy gear shifts into her nose and the emergency room physician detects and removes only one. The plaintiff's definition would characterize the remaining gear shift as a “foreign object,” even though it did not originate with and was not placed in the child by the emergency room physician.

In addressing the Law Court's concern that a plaintiff not be left without a remedy if the defendant's interpretation was adopted, the defendant argued that in each of the scenarios depicted above a plaintiff may still bring a claim for negligence, but not after the expiration of the usual 3-year statute of limitations. The Law Court found little assistance from the legislative history as well, except for the obvious intent to address the recent proliferation of medical malpractice claims and the resulting rise in malpractice premiums. The Law Court then turned its attention to an overview of relevant case law.

Maine and Other States' Courts Agree

After lengthy debate, and recognizing the decision as a significant departure from the prior rule, the Law Court first recognized the foreign object exception to the medical malpractice statute of limitations in Myrick v. James , 444 A.2d 987 (Me. 1982). A key consideration that persuaded the Law Court to deviate from the general accrual rule and embrace the foreign object exception in that case, with regard to the claim against the original surgeon, was the unique situation that occurs during a surgical procedure where “the surgeon bears the responsibility for exercising the ultimate control, in a supervisory sense at least, for placing objects in and removing them from the patient's body during surgery.” This scenario was at the heart of the decision in Myrick and was the justification for the departure from the prior rule.

Subsequent cases confirmed that the medical malpractice discovery rule was reserved for foreign objects only, and not for cases claiming negligent diagnosis, particularly where such diagnosis rested on professional judgment or discretion. See Choroszy v. Tso , 647 A.2d 803 (Me. 1994) (Physician's motion to dismiss patient's medical malpractice action based on the statute of limitations granted even where patient did not discover a tumor that the physician had failed to detect or diagnose until after the expiration of the statute of limitations); Dasha v. Maine Medical Center , 665 A.2d 993 (Me. 1995) (Equitable principles did not estop the defendant hospital from pleading the statute of limitations to bar the plaintiff's action even where the hospital's negligent misdiagnosis and treatment of the plaintiff's brain caused damage such that the plaintiff was deprived of the ability to recognize and timely file cause of action).

Cases from other jurisdictions provided important guidance as well for the Despres decision, where courts refused to extend the foreign-object exception to instances where the physician sued did not introduce the foreign objects into the patients. See, eg, Dalby v. Banks , 264 S.E.2d 4 (Ga. 1980) (3-year statute of limitations for negligence claims not extended by foreign-object exception where the patient came to the doctor with ceramic shards embedded in her hand, some of which doctor failed to remove); Garrett v. Brooklyn Hosp. , 471 N.Y.S.2d 621 (N.Y. App. Dir. 1984) (a foreign object in the patient's body before she entered the hospital could not be basis for extension of time to file suit). ( But see Miller v. Jacoby , 145 Wn.2d 65 (Wash. 2001) (holding that a professional negligence case may proceed against a doctor for leaving in a patient's body part of a Penrose drain that a previous doctor had intentionally placed there for a medical purpose; court opined that drain part became a foreign object when the second doctor, who had been alerted to the presence of the drain, inadvertently left part of it in surgical patient).)

The Law Court was persuaded that the legislative intent and relevant case law did not support expanding the foreign-object exception to instances when a third party — including a patient or previous physician — inserts foreign matter into the patient. It agreed with the defendant in finding that any such interpretation would threaten to swallow the rule in all cases involving foreign matter, regardless of the original source. The Law Court therefore concluded that if a physician has not inserted the foreign object in question into the patient, the exception to the statute of limitations does not apply.