Fixed or foreign object?
The two-year statute of limitation pursuant to OCGA 9-3-71 does not apply in cases where a physician leaves a foreign object in the patient’s body. OCGA 9-3-72 states a foreign object statute of limitation: the limitation code section OCGA 9-3-W1 shall not apply where foreign object has been left in a patient’s body, but in such a case action shall be brought within one year after the negligent or wrongful act or omission is discovered. For the purpose of this code section, the term foreign object shall not include a chemical compound fixation device, or prosthetic aid or device. In such case the plaintiff must bring the action within one year discovery of the negligent or wrongful act or omission. The code sections specifically excludes a chemical compound, fixation device, or prosthetic aid or device as a foreign body. The statute of repose stated in OCGA 9-3-71 does not apply in a foreign object case and will not bar a case brought under the statute of limitations, even if the case is filed more than 5 years after the negligent act. A band v. Klotz to 43 Ga. App. 271 (2000). Under this section, discovery means the time at which plaintiff actually learns of the negligence or could have learned of it by the exercise of ordinary care. Childers v. Tauber 148 Ga. App. 157 (1978).
Although OCGA 9-3-72 specifically excludes chemical compounds and certain fixation and prosthetic devices from its purview, it does not define a foreign object. Recent decisions on this issue provide helpful guidelines in determining when to apply the one-year statute. A bulldog clamp is not a fixation device because its purpose is to temporary occlude an artery during surgery. Unlike certain devices such as pins and sutures that are designed to remain in the body a bulldog clamp should be removed before completing the surgery, therefore, is a foreign object. A suture even though ordinarily considered a fixation device, will come under the foreign object limitation if placed and left in the wrong part of the patient’s body. A surgical sponge and a steel arterial clamp are foreign objects because they should be removed before completing surgery. A dental file and a broken drill bit are foreign objects. A dental bridge is not a foreign object because it comes under the exclusion covering fixation or prosthetic devices. The failure to find and remove a foreign object like a piece of metal from a cutting tool or pieces surrounding face that entered plaintiff’s body as a result of some injury does not, under the one-year rule. In both examples the objects were not left by some deliberate act of the physician in treating the patient, rather he failed to find the object and remove it, which amounts to simple misdiagnosis and mistreatment. Defendants’ failure to inform patient of the foreign object does not raise a separate cause of action, nor does fraud or misrepresentation claims condition related to the foreign object. Fraud would toll the statute of limitations until discovery of the object. Upon discovery, the statute begins to run. Defendant broke off a piece of dental file in plaintiff’s mouth during a root canal. Plaintiff returned the next day, and defendant supposedly take care of the problem. 9 months later plaintiff consulted with another dentist who found the file still embedded in the tooth. Plaintiff filed a complaint over one year from the time of this discovery. Denial of defendant’s motion for summary judgment was reversed. Even if misrepresentation occurred, plaintiff discovered the existence of the file still embedded in her tooth from another doctor. The statute a limitation was only told up to the point that plaintiff discovered the problem with her tooth from another doctor. In Ballard v. Rappaport 168 Ga. App. 671 (1983), plaintiff filed a claim alleging negligent surgery. Her amended complaint specifically alleged that the contract claim did not arise out of the care and treatment provided by defendant as a medical doctor. The medical malpractice claim was dismissed, but the court liberally construed plaintiff’s complaint and reverse the trial court’s grant of summary judgment on the contract claim would affirm the grant of the malpractice claim. The plaintiff’s complaint provided no factual basis for the breach of contract claim.Contact an Atlanta lawyer today for help with medical malpractice case or any case you may have.