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Too Bad, So Sad Says Texas Supreme Court

Different deadlines for lawsuits over surgical sponges

The Texas Supreme Court said Friday that a San Antonio woman could not sue her doctor over a surgical sponge left inside her body because she waited too long to file suit — even though, she could not have discovered the problem any sooner.

The court ruled 9-0 that the patient, Emmalene Rankin, ran afoul of the statute of repose, a tort reform law enacted in 2003 that strictly bans, any medical malpractice lawsuit filed more than 10 years after surgery.
Lawyers for Rankin argued that the statute of repose violates 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 until exploratory surgery revealed an old sponge lodged in her abdomen.

The Supreme Court disagreed, saying the proper legal test is not whether Rankin was treated unreasonably by the law, but whether the Legislature enacted the law in a reasonable manner.

“The Legislature could reasonably conclude that the general welfare of society, and various trades and professions that serve society, are best served with statutes of repose … even if “a small number of claims are barred through no fault of the plaintiff,” Justice Don Willett wrote for the court. “Without a statute of repose, professionals, contractors and other actors
would face never-ending uncertainty as to liability for their work.”

Other states have exempted so-called “sponge cases” from statutes of repose because the problem is notoriously hard to discover and there is no question of malpractice, Willett noted. The Texas Legislature, however, did not include a sponge exception.

Carl Robin Teague, Rankin’s appellate lawyer, said he was troubled by the ruling because it deferred to the law over the state constitution. “To me, that’s backwards. The constitution should control the statute,” he said.

In a related case, the court ruled 9-0 that a Houston-area woman may proceed with her suit, over a sponge discovered nine years after her surgery.

Tangie Walters’ doctor and hospital tried to void her lawsuit for violating a separate legal deadline, the statute of limitations. That rule gives patients two years to sue after a disputed treatment unless they can prove they did not have a reasonable opportunity to discover the problem within the time limit.

The cases were Methodist Healthcare System v. Rankin, 08-0316, and Walters v. Cleveland Regional Medical Center, 08-0169.

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