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TX: sponge left in patient over ten years: Pt. allowed to sue after statute of repose ran.

CASE FACTS: On November 9, 1995, Drs. Wendell and Robert Schorlemer performed a hysterectomy on Emmalene Rankin at Methodist Hospital. In July of 2006, Rankin experienced abdominal pain. After several visits to a number of physicians, Rankin underwent exploratory surgery and a surgical sponge was found and removed from her abdomen. On October 27, 2006, Rankin filed suit against the hospital. On January 8, 2007, she filed suit against both of the physicians who performed the hysterectomy on her in 1995. Each of the defendants separately moved for summary judgment under the Texas ten year statute of repose. The trial court granted the motions for summary judgment for all of the defendants. Rankin appealed.

COURT'S OPINION: The Court of Appeals of Texas reversed the order of the trial court granting the defendants' motions for summary judgment. The court held, inter alia, that since Rankin met the two pronged test, the Texas Statute of repose contained in Texas law was unconstitutional and in violation of the open courts provision contained in Article I, Section 13 of the Texas Constitution. Accordingly, the court reversed the trial court's summary judgments for all defendants and remanded the case back to the trial court for further proceedings. The court recognized the issue to be whether a statute of repose, albeit for a ten year period, should override the open court provision in the Texas Constitution. Here, the court was laced with what some might consider a judicial dilemma. However, the court in this case took the position that since in the case before it the patient who had the sponge left in her over ten years prior to its discovery had absolutely no way to even suspect that the physicians who performed the hysterectomy on her some ten years earlier had left a surgical sponge in her until it was discovered and removed during an exploratory laparotomy, which was performed to ascertain the cause of her abdominal pain. Editor's Note: It should be noted that not all courts would have recognized the patient's right to bring suit after so long a period after the surgery, which resulted in the surgical sponge being left in the patient had been performed. The Texas courts have been known to have been among, if not, the most liberal in allowing patients who have discovered that they may have been victims of medical malpractice to sue after the statute of repose has run. This is primarily due to the fact that the Texas Constitution contains an "open courts" provision which virtually guarantees all parties the right to their day in court. Accordingly, the patient in this case was found to have a right to her day in court, despite the fact that the statute had run. Rankin v. Methodist Healthcare Sys. of San Antonio, Ltd., LLP, 2008 TXCA4 04-07-00305- (031051 2008) S.W.3d -TX

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as all attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Medical Law Cases of Note
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Case study
Geographic Code:1USA
Date:Mar 1, 2008
Words:601
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