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Texas Supreme Court Case Watch - High Court to Consider Constitutionality of Statutes of Limitations and Repose for Medical Malpractice Cases

Surgical sponges left inside two Texas women - but undiscovered for years - will test state laws that place strict time limits on suing doctors and hospitals for malpractice. Although a ruling is not expected until next year, the cases of Walters v. Cleveland Regional Medical Center, 08-0169, and Methodist Healthcare System v. Rankin, 08-0316 may change the game in Texas, for better or for worse, with regards to suing healthcare providers for malpractice.

One of the lawsuits was dismissed because the sponge, which had become so engrossed with fibrous tissue that it could not immediately be recognized, was not found for nine years, after the two-year statute of limitations had expired. However, the second woman's lawsuit survived, despite an 11-year gap between her hysterectomy and the discovery of the sponge, which occurred during exploratory surgery in 2006. Both cases are currently before the Texas Supreme Court, which will decide whether their legal challenges should continue.

The women argue that enforcing the deadlines to file their lawsuits 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. This makes sense, given that their own doctors did not discover the cause of the injuries until the later date.

However, healthcare providers say time limits for lawsuits - which they claim were intended by the Legislature to lower malpractice insurance rates and attract more doctors to Texas (something that has not happened in Texas) - provide a public benefit that outweighs the rights of individual victims. Essentially, the healthcare providers argue, "To bad -so sad." What's more, they say, the deadlines protect medical professionals from problems that are inherent in old claims, such as faded memories or dead or missing witnesses

The two Texas Supreme Court cases belong to a unique class of medical malpractice claims known in the legal industry as "sponge cases" - foreign objects, of any kind, left inside patients after surgery. Unlike many lawsuits about misdiagnoses or mistreatment, in "sponge cases" there is no question that medical malpractice occurred, and usually no question about who was responsible. However, like all medical malpractice cases, 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 (the discovery rule).

• The statute of repose, a lesser-known deadline that bars any malpractice lawsuit filed 10 years after treatment. The discovery rule does not apply in this context and the deadline is normally a complete bar.

Each of the two sponge cases - discussed above - challenges a different time-limit statute, giving the Court's eight justices (minus Scott Brister, who recently resigned to join Andrews & Kurth) an opportunity to enlarge or shrink a patient's ability to sue.

In the Walters case, Ms. Walters underwent tubal ligation to prevent any further pregnancies. Following that surgery, Ms. Walters experienced abdominal pains, which her treating physicians attributed to gas and uterine contractions associated with breast feeding. During the next 9 1/2 years, Ms. Walters visited multiple doctors to treat her chronic abdominal pain, bladder complications, lymph node infections, vaginal bleeding, and fatigue. In 2005, while in surgery, a surgeon found a medical sponge lodged against her small intestine. Ms. Walters sued the hospital, a nurse, and the surgeon who performed the tubal ligation. The trial court dismissed the lawsuit for not being filed within the 2-year statute of limitations.

Ms. Walters appealed the dismissal to the 1st Court of Appeals in Houston, Texas. Ms. Walters argued that the two-year deadline violated the Texas Constitution's open courts provision, which guarantees access to the legal system for those with a valid claim. Ms. Walters argues that because she did not have a chance to discover the cause of her chronic illnesses until 2005, the two-year deadline is unconstitutional. The 1st Court of Appeals, however, disagreed and held Ms. Walters at fault for failing to diligently discovery the cause of her illnesses, which in effect, is asking Ms. Walters to diagnose the cause of her injuries within two years when it took her physicians much longer to diagnose that cause. According the Court, "pain itself can be an indicator of injury." As such, the Court held that Ms. Walters should have discovered the cause of the pain within two years; although, as discussed above, it took her doctors significantly longer. Ms. Walters appealed the decision to the Texas Supreme Court.

In the Rankin case, Ms. Rankin underwent a hysterectomy in 1995. Over ten years later, after dealing with pain that sent her to multiple doctors, a surgeon discovered an old surgical sponge lodged in her abdomen. Ms. Rankin filed suit against the hospital and two doctors that performed the hysterectomy. Ms. Rankin's case was also dismissed, but Ms. Rankin's case was dismissed for violating the ten-year statute of repose. On appeal, Ms. Rankin's case was reinstated and the court held that the statute of repose violated the Texas Constitution's open courts provision. According to the 4th Court of Appeals in San Antonio, "The Legislature is certainly entitled to set a period of time within which claim must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit." The defendants appealed to the Texas Supreme Court.

Although a ruling is not expected until next year, Texans should be aware of what the Court decides on these cases. In each of these cases, there is clear negligence on the part of the healthcare providers, which is not in dispute. Rather, what is in dispute is whether the victims of this clear negligence, whom have both suffered greatly, will be allowed to have their day in court. If the Court sides with the healthcare providers, and not the injured victims, this means that wrongs will go uncorrected based on an arbitrary deadline.

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