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PA Superior Court Analyzes Discovery Rule & Permits Chest Tube Case to Proceed

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On March 5, 2015, the Pennsylvania Superior Court reversed the Philadelphia Court of Common Pleas' grant of summary judgment in a case involving a surgical tube left in a man's chest after surgery and that remained in the man until he died.  Following his death, the patient's executor sued the surgeon and the hospital where the surgery occurred.

The case stemmed from a coronary artery bypass surgery performed in July 2004 during which the defendant surgeon failed to remove the entire chest tube before closing the patient.  The plaintiff, the patient's executor, alleged that the chest tube created a fibrotic reaction in the left pleural space in his lungs, as well as other symptoms, lung damage, anxiety, and depression.  Most importantly for the viability of the claim, plaintiff alleged that the patient did not learn that the retained chest pain caused any complications until 2012.  In 2009, however, the patient underwent a CT scan that revealed the retained chest tube.  That same year, one of the patient's physicians advised the patient that removing the chest tube at that point would likely cause more harm than good.

Based on this timeline, the defendants filed a motion for summary judgment and maintained that the patient's knowledge of the retained chest tube in 2009 trigged the two-year period for him to file a suit and that he was precluded from doing so after 2011.  Instead, the plaintiff sued the hospital and the surgeon in 2012.  The plaintiff argued that, although the patient was aware of the retained tube in 2009, his physicians did not advise him of any risks that its presence created or any harm it had caused him.  Rather, the patient did not learn of the link between the retained tube and his deteriorating health until he developed a pleural effusion.  Accordingly, because there was a "genuine issue of material fact" as to when the patient discovered an actual injury, the plaintiff argued that summary judgment was inappropriate.  The trial court granted the motion and the patient's estate appealed.

On appeal, the three-judge Superior Court panel reviewed Pennsylvania's current interpretation of the statute of limitations and the discovery rule.  The trial court had found that the presence of the tube itself was an actionable injury that triggered the two-year timeframe during which the patient could sue his surgeon and the hospital.  The Superior Court, in analyzing a similar case, found otherwise "as the mere existence of a foreign object retained in a person's body does not amount of a medical malpractice cause of action."  Instead, the triggering issue is whether the patient suffered a compensable injury due to a retained object because a plaintiff must prove both a breach of the standard of care as well as that the breach caused the plaintiff harm.

The Superior Court also reviewed the discovery rule, which serves to toll the statute of limitations for a patient who does not ascertain whether he or she had been injured until a certain amount of time elapses.  The running of the clock does not start at the time the injury occurs but rather it begins ticking when the patient discovers or should have discovered the harm.  Here, while the patient learned that the chest tube remained inside of him in 2009, his physician informed him that there was no infection and that the retained tube did not seem to cause him a problem.  According to the medical records and deposition testimony, the patient did not learn that he had suffered any harm until sometime between 2011 and 2012, during a subsequent physician visit as documented by an undated office note.

Based on these findings and discrepancies, the panel held that a jury should decide when the patient knew he had been harmed to determine whether the statute of limitations precluded his lawsuit.  The Superior Court reversed the trial court's grant of summary judgment and remanded the case for further proceedings.


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