Even though not entirely on point, I found this news report very interesting that I just had to share. I’ll also attempt to tie it in at the end to the law with the statute of limitations to keep it related to my blog, but really just think this is very newsworthy and interesting.
Twenty-five years ago, a British woman was evaluating her tonsils with a pen when it accidentally slipped and fell down her throat causing her to swallow it. Initially she had told her husband and general practitioner about it, but when abdominal scans came back normal, they dismissed her story.
Now at age 76, the woman had an appointment with a GI specialist for other symptoms when the doctors scanned her stomach and found the pen in her intestinal tract. When doctors removed the pen—which was corroded—they realized that it was still functional and able to write! What a crazy story! The doctor who did find the pen did say that it should serve the other doctor a lesson to not use x-rays to find plastic objects; they might not sure. Moreover, the doctor said that “occasionally it may be worth believing the patient’s account however unlikely it may be.”
What about the legal side of it though; is there any liability? Well, without knowing for sure the statute of limitations in England for medical malpractice, I am certain that it would not allow a claim for over a quarter of a century. The statute of limitations is essentially an absolute bar when a aggrieved patient can no longer sue another party for the harm they caused them. For example, in New York the statute of limitations for medical malpractice is in NY Civil Practice Law and Rules 214-a which states the timeframe is JUST 2 ½ years!! Other offenses have different statute of limitations—even the same offenses in civil and criminal contexts.
There are SOME ways to extend the statute of limitations. Some ways are tolls such as the patient was an infant (i.e. someone under 18), however it will only toll for tens before the statute of limitations begins to run again. Another toll is incompetency, and a last main toll is military service.
But there are other ways to extend the statute of limitations in medical malpractice cases. One such way was codified in the case Borgia and later codified in that same CPLR section 214-a. It is the continuous treatment doctrine and it works by not starting the 2 ½ year limitation until the doctor has finished all the treatment related to that ailment. For instance, if a doctor harms a patient in January 2000, and has scheduled follow-up appointments for that ailment in April 2000, October 200, and then decided there should be a corrective procedure in February 2001 with another follow-up March 2001 and May 2001, the statute of limitations will now end November 2003 instead of June 2002; that can be a BIG difference in a medical malpractice case!
The other way—which I wrote an extensive blog post on in the fall—is the discovery rule by the Flanagan case which was also codified in 214-a. That gives the aggrieved patient another year upon the discovery of a “foreign object” left inside of a patient by the doctor, or the time left in the statute of limitations (whatever is longer). So, if a patient is harmed by a doctor January 2000, the statute of limitations ends June 2002. But if the patient discovers a foreign object in October 2003, the patient now has one year from that to sue the doctor; October 2004. This will extend the statute of limitations again to help the patient.
But wait—why isn’t this a foreign objects case? Didn’t the doctor miss the pen—a foreign object—in the patient?!! We, yes the doctor did but no, that is not technically a foreign object. It needs to be an object that the doctor put into the patient (here it was the patient putting it in the patient). Additionally, it also cannot be something that the doctor purposefully puts into the patient, i.e. a suture, pacemaker, etc.
So while the doctor 25 years ago is not liable for the pen being left inside of the patient, this should teach that doctor and doctors everywhere a lesson. LISTEN TO YOUR PATIENTS! A patient who accidently swallows a pen is embarrassed to come forward and tell anyone about this, the fact that she did should say something; she is scared and telling the truth! What if the patient’s stomach was punctured? What if she could have been poisoned by the ink all leaking out at once? Doctors should provide a more thorough examination of patients like this instead of so quickly dismissing it!
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.