Malpractice Lawsuit Over Surgical Sponge Returns To Michigan Court

A malpractice lawsuit filed against a Saginaw hospital over a misplaced surgical sponge will return to a Saginaw County courtroom after the family of a Frankenmuth man won an appeal in the case. A Michigan Appeals Court agreed with Charles R. Ash III, an attorney representing the family of John Doyle,that the medical malpractice suit can go forward. The suit names Covenant Medical Center Inc., Michigan Cardiovascular Institute and Dr. Christopher Genco as defendants.

According to the lawsuit, John Doyle lived with a surgical sponge near his heart for eight years after having heart surgery at Covenant HealthCare in 2003. According to the lawsuit, 40 sponges were used during the operation, but only 39 were recovered after the procedure. Nurses reportedly informed the doctor who then looked for, but could not find, the sponge. The 4-inch-by-4-inch surgical sponge was discovered near Doyle’s heart in 2011 and was removed by the same doctor who had performed the surgery back in 2003. Doyle sued the hospital in 2012.

Saginaw County Circuit Judge Robert L. Kaczmarek had previously ruled that the statute of limitations had lapsed in the case. Ash argued that the six-year statute of limitations did not apply in this case. Doyle died on Sept. 27, 2015 at the age of 77. His death certificate states the primary cause of death as pneumonia/sepsis. Ash said, “He was waiting to get the chance to go to trial on this and it’s sad that he didn’t make it.”

In his opinion, Judge Peter D. O’Connell wrote, “The central issue in this case is whether defendants prevented plaintiff’s discovery of their medical malpractice cause of action, allowing the trial court to toll the six-year statute of repose. The trial court and the majority agree that defendants did not affirmatively act to prevent plaintiff from discovering the existence of the claim.”

The opinion continued, “Normally, this conclusion would resolve the case, but through a complex analysis, the majority concludes that an exception to the fraudulent conduct rule applies to this factual scenario. The majority reasons that, since defendant doctor had a fiduciary relationship with Mr. Doyle, defendant doctor had a duty to disclose malpractice of which he was aware, without opining whether such a duty exists or applies to this case.”

In response, Covenant HealthCare released a statement saying, “We are aware of this case and its path through the court system. The information we have indicates hospital policies and procedures were followed, including sponge counts and X-rays to confirm all sponges were removed from the patient. While the situation is unfortunate, the surgery was completed with the firm belief, verified by X-ray, that the radiopaque sponge was not in the patient. All care providers acted in good faith and with the best interests of the patient in mind.”

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