Surgical sponges left inside two Texas women — but undiscovered for years — will test state laws that place fairly strict time limits on suing doctors and hospitals for malpractice.
One woman’s lawsuit was thrown out because the sponge, so grown over with fibrous tissue that it could not immediately be identified, wasn’t found for nine years, long after the two-year statute of limitations had expired.
The second woman’s lawsuit survived, however, despite an 11-year gap between her hysterectomy and the sponge’s discovery during exploratory surgery in 2006.
Both cases are before the Texas Supreme Court, which will decide whether their legal challenges should continue.
The women argue that enforcing the lawsuit deadlines would deny them access to the courts — a right guaranteed by the Texas Constitution — because they had no way of knowing that misplaced sponges were causing their health problems until a surgeon found and removed the objects.
But doctors and hospitals say time limits for lawsuits — intended by the Legislature to lower malpractice insurance rates and attract more doctors to Texas — provide a public benefit that outweighs the rights of individual plaintiffs.
What’s more, they say, the deadlines protect medical professionals from problems that bedevil old claims, from faded memories to dead or missing witnesses, while shielding retirees from lawsuits after many have stopped paying malpractice insurance.
The two Supreme Court cases belong to a special class of medical malpractice claims known in legal shorthand as “sponge cases” — foreign objects left inside patients after surgery.
Unlike many lawsuits about misdiagnoses or mistreatment, in sponge cases there is no question that a medical mistake was made and usually no question about who was responsible.
But like all medical malpractice lawsuits, sponge cases are subject to two legislatively created deadlines:
• The statute of limitations, which gives patients two years to file suit after a disputed treatment — unless they can prove they did not have a reasonable opportunity to discover the problem before the deadline. Because “reasonable” is subject to interpretation, this is not as easy as it may sound.
• The statute of repose, a lesser-known deadline that bars any malpractice lawsuit filed 10 years after treatment.
Each of the two sponge cases — argued before the Texas Supreme Court on Sept. 9 — challenges a different time-limit statute, giving the court’s eight justices an opportunity to expand or shrink a patient’s ability to sue.
The day her fourth child was born in 1995, Tangie Walters had a tubal ligation to prevent future pregnancies.
Afterward, nurses at Cleveland Regional Medical Center, north of Houston, attributed her abdominal pain to gas, Walters said in court documents. And later, she said, surgeon Keith Spooner indicated that abdominal cramps were caused by uterine contractions from breast feeding, prompting Walters to bottle-feed her child.
Over the next 9½ years, Walters visited several doctors to treat chronic abdominal pain and other ailments — bladder and lymph node infections, vaginal bleeding, pneumonia-like symptoms and fatigue. In 2005, when a surgeon found a sponge lodged against her small intestine, Walters believed she had found the reason for her medical problems.
Sponges — flat gauze pads typically 4 inches square — are used to soak up blood and other fluids during surgery. When left behind, they can lead to damaged organs and can produce inflammations, abscesses or a fibrous buildup that can be mistaken for a tumor, medical literature shows.
Walters sued Spooner, the hospital and a nurse, but a Houston-area trial court dismissed the lawsuit for violating the statute of limitations.
Walters appealed, arguing that the two-year time limit violated the Texas Constitution’s open courts provision — which guarantees access to the legal system for those with a valid claim — because she did not have a legitimate chance to discover the cause of her chronic illnesses. Why, Walters asked, should she be held to a higher standard than the doctors who failed to discover the sponge despite years of treatment?
The 1st Court of Appeals in Houston disagreed, faulting Walters for failing to diligently investigate the cause of her pain. Although the pain presented a reasonable opportunity to discover the sponge before the legal deadline, the court said, Walters waited two years and three months to begin seeing a succession of doctors.
“Pain itself can be an indicator of injury,” the court ruled.
In 1995, Emmalene Rankin had a hysterectomy at Southwest Texas Methodist Hospital in San Antonio.
Ten years and eight months later, after pain sent her to a succession of doctors, a surgeon discovered an old surgical sponge lodged in her abdomen.
Rankin’s lawsuit against the hospital and two doctors, however, was quickly thrown out of court for violating the statute of repose, enacted in 2003 as part of “tort reform” legislation designed to lower medical and insurance costs by reducing the number of malpractice lawsuits and limiting the size of malpractice awards.
The law flatly states that “all claims must be brought within 10 years or they are time barred.”
Even so, an appeals court reinstated Rankin’s lawsuit last year, ruling that the statute of repose violated the Texas Constitution’s open courts provision.
“The Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit,” ruled the 4th Court of Appeals in San Antonio.
Groups representing hospitals, doctors and insurance companies cried foul, saying the court ignored the Legislature’s attempt to address crises in the insurance and health care industries.
“(Rankin) myopically focuses on herself and whether she could have discovered her alleged injury,” a Southwest Texas Methodist Hospital court brief said. “Whether a claim is discoverable or not, the Legislature’s concerns are significant and rational. Its reasons in enacting the statute of repose outweigh any infringement of Rankin’s rights, especially given the 10-year length of the statute.”
Thirty-three states have a statute of repose for malpractice lawsuits, with deadlines ranging from three to 10 years, lawyer R. Brent Cooper, who represents the doctors sued by Rankin, said during oral arguments.
Thirteen of those states carve out exceptions for surgical items left behind in a body. Texas does not, and Cooper pressed to keep it that way, arguing that the statute of repose should be found constitutional because it was not arbitrary or unreasonable when weighed against the Legislature’s intent — addressing a crisis in the insurance and medical industries.
Hospital lawyer Richard Sheehy took the argument one step further, inviting the Supreme Court to create an absolute two-year limit on all medical malpractice lawsuits, whether or not the injury could be discovered before the time limit passed.
“I certainly believe this court may decide that … the Legislature may impose a strict two-year statute of limitations, and ‘we’re sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause,’ ” he said.
Carl Robin Teague, Rankin’s appellate lawyer, called the focus on legislative intent a red herring.
Because the Texas Constitution trumps legislative power, patients must be given a chance to discover their injury before losing their constitutional right to access the court system, he argued.
A ruling isn’t expected until next year. The cases are Walters v. Cleveland Regional Medical Center, 08-0169, and Methodist Healthcare System v. Rankin, 08-0316.
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