After Sponge Left in Woman’s Stomach During Surgery, Court Considers Extending Statute of Limitations

A woman filed a negligence case against a doctor after the doctor left a surgical sponge in her abdomen while she was undergoing gastric bypass surgery. The woman underwent a gastric bypass surgery in 2003, and she had several follow-up appointments in the subsequent years. The woman said that she began having uncomfortable sensations and pain in her stomach about one year after the surgery. The woman described these symptoms to her doctor at several follow-up appointments.

In 2009, she had a CT scan done for an unrelated condition, which revealed that she had a surgical sponge in her abdomen. She had it removed immediately. Less than a year later, the woman brought a medical malpractice claim against the doctor, seeking compensation for her medical expenses as well as for the pain and suffering she endured.

The defendants argued that the woman’s claim was barred because the statute of limitations had passed. The woman’s attorney argued that the claim was not barred, due to the “continuing course of treatment doctrine.” Under the state’s continuing course of treatment doctrine, a plaintiff generally needs to show that 1) there was a medical condition that required ongoing treatment or monitoring; 2) the defendant provided ongoing treatment or monitoring after the negligent treatment; and 3) the plaintiff brought the claim within the statute of limitations after the treatment ended.

The defendant argued that the negligent treatment in this case was the placement of the sponge and that the woman did not seek ongoing treatment for it because she did not know about it. On the other hand, the woman argued that the treatment was actually the woman’s morbid obesity, for which she did seek ongoing treatment from the defendant.

The state’s supreme court had to decide whether the claim was barred by the statute of limitations, or whether it was tolled under the continuing course of treatment doctrine. The state’s supreme court did not decide whether the claim was barred or not, but instead it decided that there was a genuine dispute as to whether or not it was barred. Consequently, the supreme court ruled that the trial court should allow the case to proceed to trial.

Equitable Tolling:  An Exception to Statute of Limitations Restrictions

The statute of limitations for a claim is the maximum amount of time during which an individual can file a claim. Statutes of limitations differ depending on the claim and where it is filed. In general, Illinois medical malpractice actions have a two-year statute of limitations. This means that a case must be brought within two years after the individual knew or should have known about the injury. However, there are exceptions to the restriction.

One exception is the doctrine of equitable tolling. Equitable tolling stops a statute of limitations from running in order to prevent an injustice. For example, equitable tolling might apply when an individual failed to discover the injury because of the defendant’s misconduct or misrepresentations. However, it is generally only used in exceptional circumstances.

Knowing the applicable statute of limitations is essential in a case, since a claim may be barred if the statute has passed. However, even when the statute has passed, other exceptions may apply. The specific facts of each case determine the relevant statute of limitations and which exceptions may be applicable.

Have You Been a Victim of Medical Malpractice?

If you or a loved one has suffered from a misdiagnosis, a surgical error, a birth injury, or another form of medical malpractice, you may have a valid claim against a health care provider. Knowing the statute of limitations is the first step in a medical malpractice claim. The Chicago attorneys at Moll Law Group advise people who have suffered from medical malpractice. We represent people throughout Cook County, as well as in Naperville, Schaumburg, and Wheaton. Contact us through our online form or call us at 312-462-1700 to set up a free consultation.

See More Posts:

Woman Injured on Icy Hotel Sidewalk Fails to Provide Evidence of Hotel’s Duty to Train Employees, Must Retry Case, Illinois Injury Lawyer Blog, July 9, 2016.

Woman Fails to Provide Required Notice in Medical Malpractice Claim, Resulting in Dismissal, Illinois Injury Lawyer Blog, July 23, 2016.

Court Dismisses Case After Failure to Pay Filing Fee Within Statute of Limitations, Illinois Injury Lawyer Blog, June 25, 2016.