Friday, February 21, 2014

Leave No Stent Behind ...

Maher v. County of Alameda, No A135792 (D1d1 Feb. 18, 2014).
 

This is a med-mal case where hospital defendant implanted a biliary stent as part of treating plaintiff for gunshot wounds back in 1996. Plaintiff claimed to be unaware of the stent and only learned of it when he was hospitalized for liver complications in 2010. Plaintiff's doctors told him that the stent was only designed to be temporary and should have been removed within three to six months of installation. In the meantime, the stent had begun to disintegrate and migrate away from where it had been placed, which played some role in his complications. Plaintiff sued the hospital, which demurred on statute of limitations grounds. The trial court granted the demurrer but the court of appeal reverses. The med-mal statute of limitations is Code of Civil Procedure § 340.5. It limits tolling to three years except in certain exceptional circumstances. But one of those circumstances permits tolling when there is “the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” The court here finds that a temporary stent that has been left in place for more than a decade after it served any medical purpose meets that requirement, so the plaintiff was entitled to tolling until he found out about the implanted stent in 2010.

Reversed and remanded.

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