Pretty straightforward medical malpractice case, right? I think we'd all agree that large sponges, towels, forceps, hemostats, clamps, and other hardware left behind in the human body after surgery are classic examples of a preventable medical mistakes. Yet, both cases are before The Texas Supreme Court. Why? Welcome, again, to tort reform.
A few years ago, state legislatures in Texas, Ohio, and other states responded to a multimillion dollar phony "malpractice crisis" PR campaign hatched by the insurance and medical industry and passed numerous laws restricting the ability of malpractice victims to bring lawsuits (I might add parenthetically that doctors were getting unfairly gouged with escalating malpractice premiums by their own insurance companies due to an "insurance crisis" but the insurance lobby blamed their gouging of doctors on "lawsuits" and they won the lobbying war with state legislatures, hence all this lawsuit or "tort" reform).
Many states shortened the statute of limitation for bringing a medical malpractice claims. They also passed what is known as a statute of repose: an absolute deadline for bringing a malpractice claim (usually 10 years). No exceptions, even if you could not discover something like a foreign object left inside of you until after the 10 year deadline.
The Texas Supreme Court is going to decide whether these strict limits bar these womens' claims even though what happened to them was inexcuseable and they had no way of knowing they were carrying eroding surgical sponges in their abdominal cavities (Ohio's "reforms" are just as punitive as Texas,' although Ohio's statute of repose did make an exception for Ohio foreign object malpractice cases).
So what's the response of Texas hospitals that have filed briefs with the Texas Supreme Court? Here's what the hospital lawyer compassionately (note sarcasm here) pointed out:
I certainly believe this court may decide that ... the Legislature may impose a strict two-year statute of limitations, and 'we're sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause."(I wonder if this kind soul would feel differently about the issue if it were his wife or daughter who was carrying a large sponge for eleven years, but I digress..)
So there you have the official position of the medical profession in cases of obvious medical malpractice. We screwed up, but an deadline is necessary and we're sorry there will be victims left on the side of the road, but these laws are good for the people of Texas. Or Ohio. Or wherever else tort reform has been passed.
The hue and cry of politicians and a misinformed public is that "We need to get tough on these medical malpractice lawsuits." Well, you're getting your wish. And this is the byproduct of it all. So much for accountability and "personal responsibility."