"Foreign Object" Exception Clarified by Tennessee Supreme Court
The Supreme Court of Tennessee issued a critical medical malpractice opinion this week, Chambers v. Semmer, M.D.. In Chambers, the Supreme Court looked to the "foreign object" exception to the one-year statute of limitations and the three-year statute of repose in Tennessee medical malpractice cases.
The plaintiff in Chambers underwent surgery to remove a pelvic mass. In the process, her surgeons placed hemoclips on her posterior uterine arteries. More than four years later, the patient's left kidney was no longer functioning. She sued the two surgeons who performed her original surgery, "alleging that the damage to her left kidney had been caused by a hemoclip that had been intentionally used but negligently placed and negligently left on her ureter following the 1997 surgery."
The surgeons moved for summary judgment, arguing that the "foreign object" exception to the medical malpractice statute of limitations and statute of repose did not apply. The surgeons' position was the exact opposite of that of the patient: no hemoclip was left in the patient, but even if it was, "hemoclips are used intentionally and are intended to remain permanently...."
The Supreme Court rejected the surgeons' argument, stating that the statute does not support the defendants’ position that an object used intentionally and designed to remain permanently may never be a foreign object. Instead, the Court indicated that the "foreign object" exception "requires an analysis of many factors," and gave some insight into the facts to be considered on a case-by-case basis:
For instance, Hall indicates that the exception in section 116(a)(4) applies to cases where (a) an object never intended to be inserted during the surgery is negligently permitted to remain in a patient’s body or (b) an object temporarily used in the surgery is negligently permitted to remain in a patient’s body. Id. Moreover, Hall explains that a court may also consider additional factors such as whether the plaintiff knew about the object, whether the defendant was in some way responsible for the initial presence of the object, and whether the defendant negligently inserted the object. Id. In short, a court must look beyond whether a surgical object or device is designed to be used intentionally and to remain permanently and must fully consider the circumstances of each case.
The Supreme Court ultimately adopted the plaintiff's view of the issue, and concluded "that a hemoclip that is intentionally used but negligently placed and negligently left in a patient’s body following surgery may be a 'foreign object' under Tennessee Code Annotated section 29-26-116(a)4) that establishes an exception to the one-year statute of limitations and the three-year statute of repose."