Court Won’t Revive Claim for Towel Left in Patient for 17 years

Michigan law prevents patient from pursuing clear case of medical malpractice after he discovered the mass in his abdomen was actually a surgical towel inadvertently left behind from a surgery 17 years earlier.

According to the Michigan Court of Appeals unpublished opinion Lloyd Gatz v Mark Heinzelmann, M.D., issued February 18, 2021 (Docket No. 351278), Mr. Gatz underwent a surgery to remove a mass in his bowel in 2000.  The mass was biopsied and determined to be noncancerous and otherwise benign. Nine years later, in 2009, Mr. Gatz sought medical treatment for an unrelated issue involving his back, during which time he had imaging studies performed. The imaging studies revealed another mass in his abdomen, which was subsequently biopsied and found to be consistent with another noncancerous growth. Thereafter, from 2009 to 2017, his physicians continued to monitor possible growth of the mass. Initially, it reflected no growth but later revealed growth of the mass in significant portions and Mr. Gatz underwent surgery to remove it in 2017. The biopsy of the mass revealed it was an encapsulated blue towel left inside plaintiff’s body cavity during the 2000 surgery.

Mr. Gatz filed a lawsuit against Defendants claiming they were negligent and committed medical malpractice by leaving the towel behind during the surgery. The Defendants filed a motion to dismiss the case arguing the case was barred by the statute of limitation because it was not filed timely.

In Michigan, the statute of limitations provides that a claim for medical malpractice must be filed within two years from the date of the act or omission that is the basis for the malpractice action subject to exceptions. One exception is known as the “discovery rule” and is set forth in MCL 600.5838a(2).

Under the discovery rule, a plaintiff may start a lawsuit after the two-year period has expired if the lawsuit is filed within six months of when the plaintiff discovered or should have discovered he or she had a claim for malpractice. However, the discovery rule has its limitations and bars a patient from commencing a malpractice lawsuit if the act or omission giving rise the claim occurred more than 6 years earlier. This 6-year limitation is known as the “statute of repose.”

There is no dispute that Mr. Gatz filed his lawsuit beyond the 6-year statute of repose; however, he argued it did not apply in his case because of the “fraudulent conduct” exception set forth in MCL 600.5838a(3). According to that provision of the statute, if the discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional or facility against whom the claim is made, then the six-year provision does apply.

Unfortunately, for Mr. Gatz, both the trial court and the Court of Appeals disagreed with him in their holding that the fraudulent conduct exception did not apply in his case. The Court of Appeals reasoned that no one on the surgical team including Dr. Heinzelmann knew that a blue towel had gone missing during Mr. Gatz’s surgery or that a blue towel was retained inside his body. Absent this requisite knowledge, the Court of Appeals concluded that Mr. Gatz could not show fraudulent concealment by any of the defendants and affirmed the trial court’s decision to dismiss the case.

As a medical malpractice attorney, I frequently see situations in which patients find out that foreign objects were wrongfully left in their body from a prior surgery. Unfortunately, it is common that many of these patients will not get their day in court nor have an opportunity to seek justice given Michigan’s arbitrary time limits. In my opinion, Michigan should enact legislation, like many other states have, to permit malpractice lawsuits for those situations in which surgeons wrongfully leave foreign objects in a patient as long as they are brought within the six month discovery rule period.