stating cause of action for negligently leaving sponge in patient’s body accrues when patient learns of or through diligence should have learned of presence of foreign object in body
How later courts described this case
- stating cause of action for negligently leaving sponge in patient’s body accrues when patient learns of or through diligence should have learned of presence of foreign object in body
- providing that the statute of limitations did not begin to run until the patient learned of, or, in the exercise of reasonable care and diligence, should have learned of, the alleged malpractice
- "[T]his is a peculiar type of case [leaving sponge in patient] which is not particularly susceptible to fraudulent prosecution."
- “[Tjhis is a peculiar type of case [leaving sponge in patient] which is not particularly susceptible to fraudulent prosecution.”
Written by the judges who cited it.
Later courts went against this
Limited by Robinson v. Weaver, 20 Tex. Sup. Ct. J. 262 (1977)
In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), this Court limited its holding to causes of action in which a foreign object is left in the body of a patient, noting that in this type of ease there is an f^inability to know of the negligent act” and that it is a “peculiar type of case which is not particularly susceptibel to fradulent prosecution." this same rationale was also expressed in th
The opinion
DISSENTING OPINION
GRIFFIN, Justice.
I respectfully dissent.
The majority opinion herein sets aside and annuls Art. 5526, Vernon’s Ann.Civil Statutes, which provides: “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * * [ajction for injury done to the person of another.” (All emphasis herein that of the writer.) The statute does not mention discovery of the injury. The majority insert these words in the legislative enactment.
No serious contention is made by any party to this litigation that the date of this injury to the plaintiff was any other date than the date when the surgeon operated on plaintiff and left the sponge inside her body. That act was an unlawful act, an assault upon plaintiff, and was the date she was injured. The record in this case shows that plaintiff suffered pains in the abdominal region for some time prior to the discovery that the sponge was in her body. Were these pains not injuries to her, resulting from the unlawful act of the surgeon in leaving the sponge in her body?
The true rule is that quoted by the majority opinion from the case of Houston Water Works v. Kennedy, 70 Tex. 233 , 8 S.W. 36 (1888) and is as follows:
“When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until *583 the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury — by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right— then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.” 8 S.W. 37 . See also 54 C.J.S. Limitations of Actions § 168, pp. 122-123, and authorities therein cited.
According to the majority opinion, thirty-five of the fifty states in the United States recognize this rule, while only fifteen recognize the rule of the majority opinion.
There can be no distinction between this case and any other personal injury action wherein it is claimed an injury was received many years prior to its discovery. A hypodermic needle, or a part thereof, is broken and left in the body during a single injection of medicine administered by a hypodermic syringe. The needle is sterile and for years causes no pain. After many years the needle begins to move and gets into the blood stream and lodges in a joint of the body causing stiffness and loss of use. The present case allows recovery against whichever doctor or nurse plaintiff elects to sue, who at any previous time gave plaintiff an injection and plaintiff alleges left the broken needle in plaintiff’s body. All of defendant’s records have been lost, misplaced, or destroyed over the intervening years. Evidence is not now available and memories cloudy.
Another example: Two parties in different automobiles have what then seems to be a relatively minor collision. Medical examination of all parties shows only minor injuries from which all parties recover. Litigation results within the two-year statute, and a recovery is had. Many years later one of the parties develops tuberculosis from a sliver of rib in the lungs. Testimony is offered that this sliver entered one lung as a result of the wreck and caused the tuberculosis. The witnesses to the wreck have moved away and are not now available. Despite the previous suit and recovery, additional recovery is permitted under the “discovery” rule of the majority. Res judicata does not apply, for the reason that at the time of the first litigation the present plaintiff did not know of this tuberculosis and therefore could not have pleaded it as a part of the cause of action.
This “discovery” doctrine will lead to hopeless confusion and leave liability open without any limitation “cut off” point. The Legislature has established a “cut off” point, and this Court has no right to pass legislation changing the statute of limitations.
Only two years ago in the action of this Court in giving an unqualified refusal to Stewart v. Janes (Tex.Civ.App., 1965), 393 S.W.2d 428 , we refused to follow the philosophy of the majority opinion. I see nothing that has happened in the last two years to call for a different result.
I would affirm the judgment of the Court of Civil Appeals.