§47.25 Foreign Objects Exception to Statute of Repose
The Case: Chambers v. Semmer , 197 S.W.3d 730 (Tenn. 2006).
The Basic Facts: Plaintiff brought a medical malpractice action against two surgeons, contending that a hemoclip had been left on her ureter and that her left kidney stopped functioning as a result.
The Bottom Line:
- "We granted review in this medical malpractice case to determine whether a hemoclip that is intentionally used but negligently placed and negligently left in a patient's body following surgery may be considered a 'foreign object' that establishes an exception to the one-year statute of limitations and the three-year statute of repose." 197 S.W.3d at 731.
- "We begin our analysis with Tennessee Code Annotated section 29-26-116(a), which provides in part:
(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-3-104.(emphasis added)." Id. at 734.
(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.
(4) The time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient's body, in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.
- "After considering the language of Tennessee Code Annotated section 29-26-116(a)(4) and thoroughly examining the foregoing cases, we conclude that the trial court properly denied the defendants' motions for summary judgment for the following reasons." Id. at 735.
- "First, the plain language of Tennessee Code Annotated section 29-26-116(a)(4) requires that a foreign object be 'negligently left in a patient's body . . . .' The statutory language does not specifically exclude hemoclips or 'fixation devices.' Compare Vinciguerra, 617 N.Y.S.2d at 944. Moreover, the statute does not support the defendants' position that an object used intentionally and designed to remain permanently may never be a foreign object. Had the legislature intended to create such a broad exclusion, such language would be in the statute. See Hall, 642 S.W.2d at 727. Instead, all that is required under Tennessee Code Annotated section 29-26-116(a)(4) is that an object be 'negligently left in a patient's body.'" Id. at 736.
- "Second, this Court's decision in Hall demonstrates that section 116(a)(4) requires an analysis of many factors. 642 S.W.2d at 727. For instance, Hall indicates that the exception in section 116(a)(4) applies to cases where (a) an object never intended to be inserted during the surgery is negligently permitted to remain in a patient's body or (b) an object temporarily used in the surgery is negligently permitted to remain in a patient's body. Id. Moreover, Hall explains that a court may also consider additional factors such as whether the plaintiff knew about the object, whether the defendant was in some way responsible for the initial presence of the object, and whether the defendant negligently inserted the object. Id. In short, a court must look beyond whether a surgical object or device is designed to be used intentionally and to remain permanently and must fully consider the circumstances of each case." Id.
- "Third, Hall is consistent with the better-reasoned and more persuasive decisions in other states.FN4 In Ivey, for instance, the Georgia appellate court emphasized that 'where the placement of an internal suture during the course of a surgical procedure in an organ or other tissue not ordinarily involved in that procedure . . . [and] the suture is [not] the result of proper medical procedure, the suture is a foreign object . . . .' 295 S.E.2d at 167 (emphasis added); see also Hershley, 655 S.W.2d at 675 (where the Missouri appellate court clarified that the 'foreign object' exception applies if an object is 'introduced and negligently permitted to remain in the body. . . .).
FN4 Indeed, as noted above, many of the decisions cited by the defendants are distinguishable. The New York line of cases, for instance, is based on a statute that excludes 'fixation devices' from the meaning of 'foreign object,' see Vinciguerra, 617 N.Y.S.2d at 944, whereas Tennessee has no such statute. The South Dakota case involves the 'occurrence' rule in applying the statute of limitations, see Beckel, 578 N.W.2d at 578, whereas Tennessee employs the 'discovery' rule."Id.
- "We conclude that a hemoclip that is intentionally used but negligently placed and negligently left in a patient's body following surgery may be a 'foreign object' under Tennessee Code Annotated section 29-26-116(a)4) that establishes an exception to the one-year statute of limitations and the three-year statute of repose." Id. at 737.
Recent Cases: Digregorio v. Jackson , No. M2006-01547-COA-R3-CV, 2007 WL 2751803 (Tenn. Ct. App. Sept. 21, 2007) (applying discovery rule to time-bar a "foreign object" claim).