Doctor Leaves a Sponge Behind During Gall Bladder Operation; Patient Discovers It 13 Years Later Is It Too Late?
	The Case of Missing Sponge

For every wrong done by a tort feasor the law establishes a time limit within which the action should be commenced. The obvious purpose of this law is to protect persons and businesses against the uncertainty of a long time lapse between their actions and the consequences of their actions. If the time is too great, witnesses may become unavailable, memories fade and evidence is lost. The statute of limitations puts the plaintiff on notice that if he does not speak up now he may be barred from speaking ever.

But what if the plaintiff discovers the wrong done to him long after the statute had expired? The Court of Appeals of Texas addressed this important question.

Facts : Appellant Melendez entered St. Elizabeth Hospital in May 1968 for appellee

Dr. Beal to surgically remove her gall bladder. Appellees Paula Penn and Rose Mary Simmons were nurses who assisted in the surgery.

Appellant had no further problems until May 1981, when she began to experience a pulling sensation and pain in her abdominal area. She was admitted to Ben Taub Hospital in July for tests. The results revealed a retained sponge and an abscess under the liver. Surgery to remove the sponge showed the abscess to be secondary to the retained sponge and that the abscess had eroded into the small intestine. This erosion necessitated extensive surgical repairs in the intestinal tract. Plaintiff had no surgical operations between her 1968 gall bladder removal and the 1981 surgery to remove the retained sponge.

The limitation in the Medical Liability and Insurance Improvement Act of Texas states:

Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment is completed; . . .

The trial court entered a summary judgment in favor of the hospital, nurses and doctor. The patient appealed.

Court Decision: Appellant Melendez had no way of discovering the negligent act within two years from the date of the medical treatment. She was asymptomatic for 13 years following the subject medical treatment. She had no surgical procedures performed during this period, so there was no possibility of negligence on the part of another surgeon. Approximately six weeks after she first experienced pain, she discovered that the pain was due to the retained sponge. Approximately one year later, she filed suit for malpractice.

The limitations provision is unreasonable when applied to appellant Melendez because it denied her a cause of action before she knew, or could have known, she was injured. The provision is not only unreasonable but also arbitrary, because it abolishes a common law cause of action without providing a reasonable alternative.

The cause of action for the negligent leaving of a foreign object in a patient's body by a physician accrues when the patient learns of, or, in the exercise of reasonable care and diligence, should have learned of the presence of such foreign object in his body.

The judgment of the trial court is reversed and the case is remanded.

Melendez v. Dr. Beal, et. al. 683 S.W. 2d 869