The Code of Virginia has a special extension on the normal two year statute of limitation for medical malpractice cases in the event that a foreign object, such as a surgical towel, a sponge, knife or a needle, is accidentally left in a patient’s body. This is not really as uncommon as you might think, and it can take months or even years before the patient realizes what has happened.
If you think you have had this happen to you or a loved one like your mother or wife, sister or daughter, you should contact a good medical malpractice injury lawyer as soon as possible. The statute of limitations issue for bringing the claim is still a tricky one. Also the insurance companies for the doctor and hospital will typically fight these claims hard even though the mistake may be admitted. Often the surgeon will blame the hospital staff for their failure to do the towel and sponge count and they will in turn point the finger back at him for being the doctor in charge who let something happen on his watch and under his command.
They will also try and blame the patient for doing something wrong or exaggerating their injury, even though more surgery is usually needed to remove the object.
Any medical error which results in serious and permanent injury should be looked into both to get compensation for the patient and their family and to improve the medical system so that they realize and pay the price for preventable injuries and death.
Here is the law straight from the Code of Virginia:
§ 8.01-243. Personal action for injury to person or property generally; extension in actions for malpractice against health care provider.
A. Unless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues.
B. Every action for injury to property, including actions by a parent or guardian of an infant against a tort-feasor for expenses of curing or attempting to cure such infant from the result of a personal injury or loss of services of such infant, shall be brought within five years after the cause of action accrues.
C. The two-year limitations period specified in subsection A shall be extended in actions for malpractice against a health care provider as follows:
1. In cases arising out of a foreign object having no therapeutic or diagnostic effect being left in a patient’s body, for a period of one year from the date the object is discovered or reasonably should have been discovered; and
2. In cases in which fraud, concealment or intentional misrepresentation prevented discovery of the injury within the two-year period, for one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered.
However, the provisions of this subsection shall not apply to extend the limitations period beyond ten years from the date the cause of action accrues, except that the provisions of § 8.01-229 A 2 shall apply to toll the statute of limitations in actions brought by or on behalf of a person under a disability.
(Code 1950, § 8-24; 1954, c. 589; 1973, c. 385; 1977, c. 617; 1986, cc. 389, 454; 1987, cc. 294, 645, 679.)
