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
WALKER, Justice.
I respectfully dissent. Although petitioner did not know it, she undoubtedly had a cause of action from the moment the foreign object was left in her body. The courts in Carrell v. Denton, 138 Tex. 145 , 157 S.W.2d 878 , and Stewart v. Janes, Tex. Civ.App., 393 S.W.2d 428 (wr. ref.), simply held that the cause of action accrued when it did accrue and then gave effect to the plain provisions of Article 5526. This approach produces harsh results in some instances, but the statute is not ambiguous and its application to the facts of this case *584 has been squarely and repeatedly decided in a manner that seems to carry out the legislative intent as reflected by the terms of the act. In my opinion that should put the matter at rest as far as the courts are concerned. It is then for the Legislature to determine whether and how the statute is to be amended to take care of special hardship cases. Until the Legislature directs otherwise, therefore, I would adhere to the rule laid down in Carrell and Stewart.