The Court of Appeals of Ohio Eighth Appellate District County of Cuyahoga (“Ohio Appellate Court”) held in its Journal Entry And Opinion filed on May 23, 2019: “Although foreign-object cases have generally involved objects such as surgical instruments, needles, and sponges that were left in a patient after the completion of a surgical procedure, other items may constitute foreign objects depending on the circumstances involved … Plaintiffs are not asserting any product defect but, rather, assert that the hernia mesh constitutes a foreign object that should have been removed from [the plaintiff’s] body. It cannot be said as a matter of law that surgical mesh can never constitute a foreign object.”
The plaintiffs had alleged in their Ohio medical malpractice lawsuit that they filed on November 7, 2016 that the plaintiff had hernia surgery on March 30, 2010 and developed an abscess in 2014 for which he sought medical treatment from the original surgeon who recommended that no additional treatment was required. Nonetheless, the abscess ruptured on November 13, 2015 and a gauze-like material could be seen protruding from the abscess.
The plaintiffs alleged that the surgeon pulled a gauze-like material from the plaintiff’s abscess, wrapped it in a surgical glove, and discarded it in the trash, where it was retrieved by the plaintiff’s wife. The plaintiffs alleged that the plaintiff was then taken into surgery and that the surgeon falsified the plaintiff’s medical record.
The plaintiffs’ Ohio medical malpractice lawsuit alleged causes of action for medical negligence, negligent misrepresentation, breach of duty of loyalty, fraudulent misrepresentation and nondisclosure, a Moskowitz claim (i.e., an intentional alteration, falsification, or destruction of medical records by a doctor, to avoid liability for his or her medical negligence, is sufficient to show actual malice, and punitive damages may be awarded whether or not the act of altering, falsifying or destroying records directly causes compensable harm), and for loss of consortium.
The defendants moved for summary judgment, arguing that the plaintiffs’ claims are barred by R.C. 2305.113(C), which is a statute of repose that, with limited exception, bars an action four years after the occurrence giving rise to a medical claim. The trial court granted the defendants’ motion for summary judgment, and the plaintiffs appealed.
Ohio Appellate Court Opinion
Foreign Object Exception
The foreign-object exception set forth under R.C. 2305.113(D)(2) provides: “If the alleged basis of a medical claim, dental claim, optometric claim, or chiropractic claim is the occurrence of an act or omission that involves a foreign object that is left in the body of the person making the claim, the person may commence an action upon the claim not later than one year after the person discovered the foreign object or not later than one year after the person, with reasonable care and diligence, should have discovered the foreign object.”
Pursuant to R.C. 2305.113(D)(3), the person commencing the action under the foreign-object exception has the affirmative burden of proving by clear and convincing evidence, that the person, with reasonable care and diligence, could not have discovered the injury resulting from the act or omission constituting the alleged basis of the claim within the one-year period described in R.C. 2305.113(D)(2). The Ohio Appellate Court stated: “Here, the record reflects that plaintiffs filed suit on November 7, 2016, which was less than one year after the November 15, 2015 date on which [the plaintiff] discovered the alleged “foreign object” in his abdomen.”
The Ohio Appellate Court further stated, “Although the legislature has not defined the term “foreign object,” case law suggests it is an object that is not intentionally left in a patient for sound medical reasons.” The Ohio Appellate Court held: “Under the circumstances of this case, there are a number of genuine issues of material fact in dispute, including whether there was hernia mesh removed from [the plaintiff], and if so, whether the hernia mesh was left in [the plaintiff’s] body for sound medical reasons … Viewing the evidence in a light most favorable to plaintiffs, reasonable minds could reach differing conclusions on whether plaintiffs’ claims involve a foreign object.”
Source Vucsko v. Cleveland Urology Assocs., Inc., 2019-Ohio-1992.
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