WY: sponge found during second surgery: 'discovery rule' applied to statute...

CASE FACTS: Jean and Josephine Jaurequi brought suit for medical malpractice against Memorial Hospital of Sweetwater County and Dr. Joseph Oliver. The suit arose out of the Jaureguis' complaint that Dr. Oliver operated on Mr. Jauregui at the hospital and was assisted by hospital staff, to repair a torn rotator cuff tendon on January 11, 1999. A week later, Mr. Jauregui returned to Dr. Oliver to have the stitches removed. At that time, an infection was present. On February 26, 1999, Dr. Oliver again operated on the patient's shoulder at the hospital. During this operation, a surgical sponge was found that had been left inside the patient's shoulder during the first operation. Deposition testimony revealed that the Jaureguis were informed of the presence of the surgical sponge immediately following the February surgery. The Jaureguis contended that all parties were negligent in leaving the sponge in the shoulder. The Jaureguis filed both a governmental claim form with the hospital and their complaint in district on February 26, 2001. The District Court of Wyoming dismissed the suit as to the hospital, finding that it lacked subject matter jurisdiction. The plaintiffs appealed.

COURT'S OPINION: The Supreme Court of Wyoming affirmed the judgment of the district court in part and reversed it in part. The court remanded the case back to the district court for proceedings consistent with its opinion. The court held, inter alia, that the Jaureguis failed to file a notice of claim against the hospital that was sworn to under penalty of perjury as required by the State Constitution. This failure deprived the district court of jurisdiction over the potential claim. Accordingly, the court ruled the plaintiffs' claim against the hospital had been properly dismissed. However, the court held that the district court erred in granting summary, judgment in favor of Dr. Oliver. The finding by the district court that the "act, error or omission" that triggers the running of the statute of limitations was the first surgery when the sponge was left in the patient's shoulder ignored almost twenty years of precedent of the court. The court noted that it had clearly defined the "act, error or omission" as being "the termination of the course of treatment for the same or related illnesses or injuries." The February 26, 1999, surgery was found to be a continuation of the course of treatment begun with the initial surgery in January 2001. Editor's Note: Fortunately for the hospital, the plaintiffs failed to complete the notice, which they gave to the hospital in accordance with the state's Constitution, which required that it be under oath. Otherwise, the court would have had to rule as it had against Dr. Oliver Jaurequi v. Memorial Hospital of Sweetwater County, No. 0406 (05/12/2007) P3.d--WY

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A, David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who s Who in America and Who's Who in the Word.