Medical malpractice lawsuit settlement reported for a mistake that was not discovered for seven years

By Eric Saiontz
Posted January 26, 2007

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On Thursday a medical malpractice lawsuit in Ohio was settled two weeks into the trial, according to the Associated Press.  The case involved a surgical mistake which resulted in a woman’s death seven years after the surgeon left a rolled-up towel inside of her chest.  In many states the family would have been barred by the statute of limitations from obtaining compensation for this error.

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The Plaintiff had surgery for emphysema in 1995 and died seven years later in 2002.  Following her death, it was discovered that a cloth was left in her lung during the surgery.  Prior to reaching the confidential settlement, the negligent doctor attempted to argue that the towel did not affect the length or quality of her life.

Every state has a different statute of limitations which outlines the deadlines by which a lawsuit must be filed.  For cases such as this where the patient has no way of knowing that a mistake has been made, many states have a “discovery rule” which allows additional time after the mistake is uncovered. 

In Ohio, a cause of action for medical malpractice accrues when the claimant discovers or, in the exercise of reasonable care and diligence, should have discovered the resulting injury, or when the relationship with the treating physician terminates, whichever is later.  Recently the Ohio statute of limitations was amended to add a statute of repose which limits the period of discovery to approximately four years (with certain exceptions).  However, this amendment only affected medical mistakes which occurred on or after April 11, 2003, so it was not applied to this malpractice lawsuit.

If this were a Maryland medical malpractice lawsuit, the family never would have been able to seek justice for this surgical error.  The Maryland statute of limitations requires that any claim be filed within three years from the date the medical mistake is discovered, but in no case more than five years from the date of the negligent act.  In this case, since the cloth was not discovered until seven years after the surgery, the lawsuit would have been barred by the statute of limitations.

The Saiontz & Kirk medical malpractice lawyers investigate cases nationwide.  If you believe that a medical mistake may have resulted in an injury for you, a friend or family member it is important to have it reviewed by qualified malpractice lawyers as soon as possible, since time could be running out on the claim.  Request a free claim evaluation.