Oops, Lost a Stent, Medical Negligence Suit Reinstated

A California appeals court reinstated the medical negligence suit of an Oakland man who discovered, 14 years after he was treated for a gunshot wound, a temporary stent that had been left in his body.

The First District Court of Appeals held the state’s 1975 law severely limiting medical malpractice claims that are more than three years old, had an exception in cases in which a foreign object is discovered years after the medical procedure.

The decision will allow Brendan Maher to sue doctors at AlamedaCountyMedicalCenter, including Drs. Frederick Wright, Ralph Bernstein, Vaneida White, J. Dougal MacKinnon, Lifeline Medical Care-Berkeley Primary Care and AltaBatesSummitMedicalCenter.

Maher underwent emergence abdominal surgery in 1996 after a gunshot wound in Berkeley.  A temporary stent was placed in his abdomen, but Maher says he was never told about it.  After his discharge, he received outpatient treatment from Vaneida, according to the court.

In 2010, the stent was discovered when he reported abdominal pain and vomiting to a KaiserHospital in Los Angeles. Kaiser told Maher the type of stent was intended to be temporary and should have been removed within three to six months of his surgery, but certainly not more than a year later.

Maher sued AlamedaCounty and the doctors in 2011, but the case was dismissed based on the four-year statute of limitations under California’s 1975 Medical Injury Compensation Reform Act (MICRA).  He accused the hospital and doctors of negligence.

But the statute allowed the four-year limit to be extended for fraud, intentional concealment, or the presence of nontherapeutic and nondiagnostic foreign bodies.

The appeals court reinstated his negligence claim saying that because the stent was not “therapeutic” and was intended to be temporary, rather than permanent, the statute of limitations did not apply.

Case:  Maher v. County of Alameda, No. A135792




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