Archive for November 2009

While the Texas Supreme Court considers two very similar cases (Walters v. Cleveland Regional Medical Center, and Methodist Healthcare System v. Rankin) involving medical malpractice of doctors, nurses and hospitals for leaving sponges inside a patient, the Texas Attorney General Greg Abbott has filed a brief with the Texas Supreme Court urging the Court to dismiss the lawsuit filed by Emmalene Rankin. Emmalene Rankin discovered a surgical sponge lodged against her colon 10 years and eight months after her hysterectomy.

The two Supreme Court cases belong to a special class of medical malpractice claims known as “sponge cases” – cases where foreign objects are improperly left inside the patient following a surgical procedure. Unlike many lawsuits about mis-diagnoses or mistreatment, in sponge cases there is no question that a medical mistake was made and usually no question about who was responsible. As a result, the doctors and hospitals involved in these cases are very likely to be held responsible if they cannot get the Court to dismiss the claims for technical reasons.

Emmalene Rankin’s Case:

In 1995, Emmalene Rankin had a hysterectomy at Southwest Texas Methodist Hospital in San Antonio. Ten years and eight months later, after pain sent her to a succession of doctors, a surgeon finally discovered the cause of her medical problems, an old surgical sponge that had been left inside her from her 1995 surgery was lodged in her abdomen.

Rankin filed a lawsuit against the hospital and two doctors, but the judge dismissed the lawsuit for violating the statute of repose, enacted in 2003 by the Texas legislature as part of “tort reform” legislation designed to lower medical and insurance costs by reducing the number of malpractice lawsuits and limiting the size of malpractice awards. According to the statute of repose enacted in 2003, “all claims must be brought within 10 years or they are time barred.” The Court of Appeals re-instated the lawsuit last year ruling that the statute of repose violated the Texas Constitution’s “Open Courts” provision. The Court of Appeals ruled that while “the Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit.”

Attorneys for the hospital and doctors being sued claim that the legislature intended to limit the time period that these claims can be brought. However, Rankin’s lawyers point out that the intent of the legislature is irrelevant if the law violates the Constitution. The Texas Constitution trumps legislative power, patients must be given a chance to discover their injury before losing their constitutional right to access the court system, he argued.

This issue points out the issue on our legal system that the Constitution is the supreme law of the land, and the legislature does not have the power to enact laws that violate the Constitution. On other tort reform issues, the insurance companies and doctors’ lobbies realized that the tort reform issues presented a constitutional problem so they brought the issue to the voters of the State of Texas by asking the voters to approve a constitutional amendment which enabled the legislature to enact the tort reform measures that limited damage awards.

Tangie Walters’ Case:

Tangie Walters case is also a sponge case. In 1995, after giving birth to her child, Tangie Walters had a tubal ligation to prevent future pregnancies. Following the surgery, Mrs. Walters report abdominal pain that nurses at Cleveland Regional Medical Center dismissed as gas pains. In addition, Dr. Keith Spooner indicated that abdominal cramps were caused by uterine contractions from breast feeding, prompting Walters to bottle-feed her child. Over the next 9½ years, Walters visited several doctors to treat chronic abdominal pain and other ailments – bladder and lymph node infections, vaginal bleeding, pneumonia-like symptoms and fatigue. In 2005, a surgeon finally discovered the cause of her problems. The doctor found a sponge lodged against her small intestine. When these sponges and gauzes are left inside a patient after surgery, they can damage organs and produce inflammations, abscesses or a fibrous buildup that can be mistaken for a tumor.

Walters sued Spooner, the hospital and a nurse, but a Houston-area trial court dismissed the lawsuit for violating the statute of limitations. Walters appealed, arguing that the two-year time limit violated the Texas Constitution’s open courts provision – which guarantees access to the legal system for those with a valid claim – because she did not have a legitimate chance to discover the cause of her chronic illnesses. The Court of Appeals dismissed the lawsuit and blamed Mrs. Walters for failing to diligently investigate the cause of her pain. Although the pain presented a reasonable opportunity to discover the sponge before the legal deadline, the court said, Walters waited two years and three months to begin seeing a succession of doctors.

“Pain itself can be an indicator of injury,” the court ruled.

Each year, scores of lawsuits against medical professionals are dismissed because the Court finds that the patient did not bring the lawsuit in a timely manner. Often, such as in Mrs. Walters’ case, the issue is whether the patient should have discovered the problem sooner and brought the lawsuit in a more timely manner. These issues are extremely difficult and complex, and greatly favor the medical professionals as patients do not have the ability and resources to diagnose themselves, and even the medical professionals they see for their problems often cannot determine the source of the problem for an extended period of time. Then, even when the problem is located, the procedural legal hurdles that have been put in place that are designed to discourage lawsuits from being filed against medical professionals take a substantial amount of time to complete before the attorney can even decide if a lawsuit is appropriate.

Richard Sheehy a lawyer for one of the hospitals involved in these two cases argues that patients should not be given an opportunity to discover the wrong-doing of medical professionals and to hold them accountable for their actions by urging the Supreme Court to create an absolute two-year limit on all medical malpractice lawsuits, whether or not the injury could be discovered before the time limit passed. “I certainly believe this court may decide that … the Legislature may impose a strict two-year statute of limitations, and ‘we’re sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause.”

In the end, these should be cases about providing the Constitutional guarantees to citizens of our state, but the political forces including the efforts of the Texas Attorney General are obviously at play in these matters as there is no explanation as to what the State’s interest is to justify why the Texas Attorney General would try to get involved to lobby for doctors and hospitals in a private lawsuit. The concern about political influence is very real when examining the track record of the Texas Supreme Court over the past few years in protecting patient’s and consumer’s rights against big business, corporate defendants, and medical professionals.