Metropolitan News-Enterprise


Wednesday, February 19, 2014


Page 1


Court of Appeal Revives Malpractice Suit in Medical Implant Case

Statute of Limitations Exception Applies to ‘Foreign Body’ That Should Have Been Removed, Justices Say


By MICHAEL J. PEIL, Staff Writer


A medical patient can bring his claim for medical negligence under an exception to the three-year statute of limitations for medical objects that are implanted into the body and are designed for temporary use, the First District Court of Appeal ruled yesterday.

Div. One, in an opinion by Presiding Justice Sandra L. Margulies, reinstated Brendan Maher’s suit against Alameda County and others. The justice said the biliary stent implanted in Maher during surgery in 1996 was a “foreign body” within the tolling exception of Code of Civil Procedure §340.5.

The section provides an exception to the three-year statute of limitations for medical malpractice suits if the alleged injury was caused by an implanted foreign body having a nontherapeutic purpose.

The trial judge had ruled that the tolling exception did not apply to Maher’s stent because it was intentionally left in the body for therapeutic purposes following his surgery to address abdominal injuries.

Marguiles explained, however, Maher’s claim was tolled because his stent was allegedly designed to be temporary and that it lost its therapeutic purpose when it was not removed in a timely manner, regardless of the initial therapeutic purpose of the implant.

Maher’s complaint alleged that he underwent surgery in 1996 at Alameda County Medical Center, after having been injured by a gunshot in Berkeley. A biliary stent was placed in his bile duct as part of the procedure. Maher was unconscious during the procedure and was not informed of the implant after the operation.

Gunshot Wound

Maher claimed that he received rehabilitative care for the gunshot wound for the remainder of the year, and outpatient treatment from Lifelong Medical Care of Berkeley until 1997, but that he did not discover the implant until 2010 when he went to the emergency room at Kaiser Hospital in Los Angeles after experiencing abdominal pain and vomiting.

Kaiser administered blood tests which indicated that Maher’s liver enzymes were consistent with a biliary obstruction. A body imaging then revealed the existence of the stent.

The physicians explained to Maher that his stent was designed for temporary use and should have been removed three to six months after its implant, and that it lost its efficacy after one year. The stent was removed less than 24 hours after its discovery at Kaiser.

Doctors Sued

In 2011, Maher filed a complaint against the county, doctors Frederick Wright, Ralph Bernstein, and Vanieta White, and the previously attended medical facilities.

Maher’s medical negligence cause of action, Marguiles explained, turned on the interpretation of §340.5, which was passed as part of the Medical Injury Compensation Reform Act of 1975 to address the increasing costs of medical malpractice insurance by limiting the time that a suit could be brought.

The law, she explained, limited the initiation of claims to three years, regardless of the date of discovering an injury, and changed the tolling provision of the three-year limit only for cases involving fraud, intentional concealment, or the presence of nontherapeutic objects. These three exceptions to the tolling period, she recognized, were the exclusive means for extending claims beyond the three-year limit.

Nontherapeutic Purpose

Marguiles reasoned, however, that the requirement that an object be for a nontherapeutic purpose could still be satisfied when dealing with an object that was initially implanted with a therapeutic purpose, if the object was permitted to stay inside a patient beyond the intended purpose.

Citing Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, she said:

“[T]his requirement can be satisfied even if the foreign body had such a purpose or effect when originally placed in the patient’s body. It is enough the foreign body was not removed after it had ceased having this therapeutic purpose or effect….[T]he continued presence of these items for weeks, months or years after the wound was closed had no therapeutic value.”

The medical practitioners contended that Maher’s implant was like two other cases where foreign objects were not tolled: silicone injections for a therapeutic purpose, and acrylic substance implanted into a patient’s neck to maintain space between vertebrae.

Distinguishing those cases, she said:

“[I]n both cases the substances placed in the patient’s body for a therapeutic purpose were intended to remain there permanently and for that reason did not come within the statutory foreign body exception.”

The case is Maher v. County of Alameda, 14 S.O.S. 812.


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