Day on Torts
The Tennessee Supreme Court has just granted a Rule 9 application in a medical negligence case, even though the Tennessee Court of Appeals refused to do so.
The plaintiff had an abdominal operation several years ago and learned more than three years later that a clip was left on one of her ureters, resulting in the death of one kidney. She brought suit and the defendants asserted the three-year statute of repose. The plaintiff raised the foreign objection exception to the statute of repose. The defendants then asserted because the clip was of the type that is often left in the body it was not a “foreign object” within the meaning of the statute and therefore the suit was untimely.
Plaintiff asserts that even though the clip is of the type often left in the body it is not supposed to be left on a ureter. Essentially, the plaintiff argues that an object can become a “foreign object” if it was left in the body for an unintended use.
The trial judge denied summary judgment (twice) but granted a Rule 9 appeal. There is no Tennessee case directly on point. Other states (you guessed it) are split on the issue.
My opinion is that the Tennessee Supreme Court will rule for the plaintiff on this issue. The defendant doctors both admitted that there was no reason for this clip to be applied to the ureter (and, in fact, they deny doing it.) Therefore, placing (and certainly leaving) a clip on the ureter is malpractice. While I agree that the foreign object exception should not trump the statute of repose if the object was being used as intended and was left in the body, the statute of repose should not bar recovery if the foreign object should not have been left where it was left in the first place.
Stated differently, if the standard of care permits an object to be left in the body that object becomes a “foreign” object if the object was not used or left in the body in accordance with the standard of care. If it becomes a foreign object the plaintiff must file suit within one year of the date plaintiff discovers or reasonably should have discovered the injury giving rise to the claim, but the statute of repose is not a bar to the action regardless of how much time passes.
I cannot link to an opinion in the Court of Appeals because there was not one. The name of the case is Chambers v. Semmer. You can expect an opinion in the late Spring.