§39.16 Foreign Objects Exception to Statute of Repose
1. Digregorio v. Jackson, 2007 WL 2751803 (Tenn. Ct. App., Sept. 21, 2007).
The Court's Summary:
"The defendant otologist performed surgery on the right ear of a man who suffered from a congenital condition. The patient claimed that for more than nine years after the surgery he suffered from chronic infections and a foul-smelling discharge from that ear. Another otologist finally revised the earlier surgery and discovered a small piece of sponge-like material in the patient’s mastoid cavity, which the patient alleged had caused his infections and had been left there by the defendant almost ten years earlier. The defendant filed a motion for summary judgment, contending that the patient’s complaint was time-barred because of the passing of the one-year statute of limitations and the three-year statute of repose for medical malpractice. The trial court granted the motion. The plaintiff argues on appeal that the trial court erred because it failed to properly consider Tenn. Code Ann. § 29-26-116(a)(4) of the medical malpractice act, which sets out a separate statute of limitations “in cases where a foreign object has been negligently left in a patient’s body . . . .” We affirm the trial court’s judgment. View opinion.
Note: this opinion seems to be inconsistent with traditional analysis of "foreign object" cases. It applies the "discovery rule" to time-bar a "foreign object" claim; the statute does not appear to permit that result.
The Court's Summary:
"The defendant otologist performed surgery on the right ear of a man who suffered from a congenital condition. The patient claimed that for more than nine years after the surgery he suffered from chronic infections and a foul-smelling discharge from that ear. Another otologist finally revised the earlier surgery and discovered a small piece of sponge-like material in the patient’s mastoid cavity, which the patient alleged had caused his infections and had been left there by the defendant almost ten years earlier. The defendant filed a motion for summary judgment, contending that the patient’s complaint was time-barred because of the passing of the one-year statute of limitations and the three-year statute of repose for medical malpractice. The trial court granted the motion. The plaintiff argues on appeal that the trial court erred because it failed to properly consider Tenn. Code Ann. § 29-26-116(a)(4) of the medical malpractice act, which sets out a separate statute of limitations “in cases where a foreign object has been negligently left in a patient’s body . . . .” We affirm the trial court’s judgment. View opinion.
Note: this opinion seems to be inconsistent with traditional analysis of "foreign object" cases. It applies the "discovery rule" to time-bar a "foreign object" claim; the statute does not appear to permit that result.