On May 24, 1996, surgeons implanted a stent in the plaintiff’s bile duct during emergency abdominal surgery, following the man suffering a serious gunshot wound. The plaintiff alleged that he was unaware of the implanted stent until August 10, 2010, when he sought medical treatment for abdominal pain and vomiting, at which time the stent was discovered and removed.
The plaintiff filed his California medical malpractice case on April 29, 2011 against the health care providers associated with his 1996 abdominal surgery and his health care providers during 1997, alleging that they were negligent in not timely removing the stent, in failing to advise him of its placement, and in failing to advise him that the stent was designed to be temporary.
The medical malpractice defendants challenged the plaintiff’s ability to file and maintain his medical malpractice case so long after the 1996 surgery. When the trial court agreed with the defendants, the plaintiff appealed, contending that the statute of limitations was tolled from 1996 to 2010 under the “foreign body” exception stated in California Code of Civil Procedure section 340.5.
In its decision filed on February 18, 2014, the Court of Appeal of the State of California First Appellate District Division One (“Appellate Court”) agreed with the plaintiff and reversed the trial court’s decision.
California Code of Civil Procedure Section 340.5 provides in relevant part: “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person …”
The trial court had ruled the “foreign body” tolling exception did not apply to the biliary stent because an object intentionally left in the body for a therapeutic purpose following the completion of a medical procedure does not qualify as a “foreign body” for purposes of section 340.5.
The Appellate Court disagreed and held that the “no therapeutic or diagnostic purpose or effect” qualification in section 340.5 means the foreign body exception does not apply to objects and substances intended to be permanently implanted but items temporarily placed in the body as part of a procedure and meant to be removed at a later time do come within it, and therefore the plaintiff’s medical negligence claims should not have been dismissed under section 340.5.
Source Brendan Maher v. County of Alameda, et al., Case No. A135792.
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