Estate of Doyle v. Covenant Med. Ctr., Inc. — Mar. 2016 (Summary)

MALPRACTICE CLAIM/RETAINED SPONGE AND PEER REVIEW PRIVILEGE

Estate of Doyle v. Covenant Med. Ctr., Inc.
Docket No. 324337 (Mich. Ct. App. Mar. 3, 2016)

Full Opinion

Concurring-in-part and Dissenting-in-part Opinion

The Court of Appeals of Michigan reversed in part and affirmed in part a trial court’s ruling that a patient’s estate was time-barred from bringing a claim for medical malpractice.  This litigation arose from cardiac bypass surgery that was performed in 2003.  Unknown to the patient, a surgical sponge was left inside the surgical site and lodged against his heart.  For close to eight years, the patient suffered, without diagnosis, from unexplained shortness of breath, fatigue, sweating and pain.  Finally, when the patient underwent a sternotomy, the missing sponge, which was surrounded by “green foul fluid,” was discovered.  The patient filed a malpractice action, eight years after the initial surgery, against the surgeon, the group that employed the surgeon, and the hospital (collectively, the “surgeon”).

In response to the complaint, the surgeon asserted that the patient’s claims were time-barred because the claims were not filed within the six-year statute of repose.  The surgeon also alleged that the patient failed to sufficiently plead that he had acted fraudulently by concealing the existence of the sponge.

The trial court dismissed the complaint, finding that “a discrepancy in the [sponge] count does not equate to knowledge of a retained sponge.”  However, on appeal, the court found that failing to disclose that there was a missing sponge deprived the patient of an opportunity for early treatment and deprived the patient of facts underlying a claim for malpractice.  The appellate court found that the surgeon owed the patient a fiduciary duty to disclose the fact that there was a missing sponge and the intentional failure to do so constituted fraudulent concealment.  Thus, the court concluded that the time frame the patient had to file the malpractice action should be extended.

The appellate court affirmed the trial court’s ruling that an incident improvement report was privileged under the state peer review statute and was thus not discoverable.  The appellate court also affirmed the trial court’s decision that a letter sent to the patient by the hospital’s director of risk management, after the sponge was discovered, acknowledging that the hospital “would assume all costs associated with the incident,” was inadmissible because it was an offer of compromise.