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Typically, medical malpractice cases are one-offs. A plaintiff may sue her doctor and/or hospital for failing to diagnose a condition or treating it in a suboptimal way. They tend to be highly fact-dependent even if the general subject, like post-operative infection, comes up fairly often within the world of med mal cases. In individual cases, the application of statutes of limitation will also tend to be highly fact-dependent. For this reason, winning on SOL at the motion to dismiss stage is pretty unusual. Bright v. Sorensen, — P.3d –, 2020 WL 813648 (Utah Feb. 18, 2020), bucks each of these trends. It involves more than 1000 plaintiffs against the same defendants over basically the same conduct and a discretionary appeal to the Utah Supreme Court to address rulings on motions to dismiss based on SOL and a statute of repose—we will ignore the SOR part of it—in three of them. The decision addresses two issues in particular that come up in our cases fairly often, which is why Sorensen caught our eye.

The three plaintiffs in Sorensen, apparently like many others, had surgeries with a particular interventional cardiologist to repair patent foramen ovale or atrial septal defects. They claim their surgeries were unnecessary, in part based on the conclusion of the hospital system that the surgeon should have his privileges suspending for doing too many of these surgeries. Although the hospital sent the patients a letter about an issue with the device implanted in connection with these surgeries, it allegedly did not fully disclose the issues with this surgeon to his patients. Lawyers started advertising and litigation started. The three plaintiffs in Sorensen sued in 2017, more than five years after their respective surgeries, almost three years after getting the hospital’s letter, but just within two years of seeing the ads. Utah has a two year statute for med mal claims, so they needed a hook to keep their cases alive. (In a case where the injury is an unnecessary surgery—as opposed to an injury from it—it makes sense that the clock starts with the surgery itself absent some tolling.)

Plaintiffs claimed both statutory exceptions applied: (1) fraudulent concealment and (2) foreign object. The predictable issue with the former was how did Plaintiff plead this and what standard applies to pleading an exception to a defense. Utah has a Rule 9(c)—like Fed. R. Civ. P. 9(b)—providing that fraud must be alleged with particularity. The court ruled this provision does not apply to fraudulent concealment, because it considered that “an anticipatory response to an expected affirmative defense” and not a “pleading” to which Rule 9(c) could apply. Id. at *6. The court went on to note that plaintiffs had tried to offer allegations of fraudulent concealment—insufficient if the typical “who, what, when, and where” for pleading fraud applied—but they did not have to do so and could not be dinged for falling short. Id.

Here is the rub, though: there is a reason the plaintiffs tried to put fraudulent concealment allegations in their complaints. On their face, without tolling, the cases were not timely under Utah law. The general pleading rule requires a plaintiff to provide a “statement of the claim showing that the party is entitled to relief.” Utah R. Civ. P. 8. A time-barred plaintiff is not entitled to relief and, while SOL is typically considered an affirmative defense, the SOL provisions, including the exception for fraudulent concealment, is part of the Utah Health Care Malpractice Act. So, unless the Utah courts are going to be fine with med mal complaints without key dates, they probably should expect otherwise time-barred claims to be presented with sufficient pleading on the tolling the plaintiff needs to show she is entitled to relief. After all, SOL is something that can be presented on a 12(b)(6) motion as a reason why the plaintiff has “fail[ed] to state a claim upon which relief can be granted,” so it would not make much sense if saying “fraudulent concealment” in a response to a motion to dismiss was enough to defeat it regardless of what, if anything, was in the complaint. We could go on—there is more to the court’s discussion—but we will move on to the part of the decision that we like.

The other exception that plaintiffs claimed saved their claims from the SOL is:

in an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient’s body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient’s body, whichever first occurs.

Id. at *10. The “foreign object” they claimed was relevant here was a device implanted as part of the plan of these surgeries. It seems obvious that the intent of the exception was to give more time to sue in the case of something left in the patient’s body, be it a sponge, artichoke, or something else not supposed to be left in during the surgery, that the patient did not know was left in. Plaintiffs argued that “foreign” meant anything not naturally in the body. If accepted, then this interpretation would cover any implanted medical device, from suture to surgical mesh to a pacemaker. Because there are some states with SOLs for claims that might be pursued against the manufacturer of these implantable medical devices, we were keen to see how the court would pick between the two interpretations.

As we say sometimes, “context matters,” and the context here was that the “foreign object” was something the patient could “discover” had been “wrongly left in [her] body.” Id. at *12.

In light of the language and structure of the statute, we hold that the “foreign object” exception extends only to objects wrongfully left in an improper place. The exception thus includes implements used during surgery but meant to be removed (like a sponge or clamp), or objects accidentally introduced into the body during surgery (like a Junior Mint). But it does not extend to medical devices or implants that are the very point of a medical procedure. Medical implants are not transformed into discoverable, wrongfully placed foreign objects when a patient later concludes that a surgery was unnecessary.

Id. (paragraph break omitted). This is clearly the correct result. Were plaintiffs’ argument accepted, it would short path down a slippery slope to extending the time to sue over implanted medical devices based on a claimed discovery of something wrong with the device years after implant. Slippery slopes are fine for skiing. Not so much for SOLs.