FRESNO, Calif. — A California appeals court recently dismissed a
medical-malpractice action that alleged improper medical care
involving a wire left in a patient's body.
The malpractice claim was dismissed Jan. 24 in a 2-1 decision by
the Court of Appeal of the State of California 5th Appellate
District, with the majority concluding that the one-year statute of
limitations, as defined in California’s Code of Civil Procedure,
According to Law360,
during surgery to remove a kidney stone, a piece of guiding wire used
by the surgeon was left in Timothy Trimble’s kidney. The court
concluded that the statute went into effect the moment Trimble knew
about the wire left in his body.
Trimble’s surgeon, Dr. Richard Fightlin, told him about the wire
inside his body the day of the surgery in July 2012. After this first
procedure, Trimble notified Fightlin of his intent to sue in
September of the same year. Trimble then underwent a second surgery
with Fightlin in October 2012 to remove the wire, which was
unsuccessful. Ultimately, Trimble had a third procedure in December
2012 after Fightlin referred him to the University of California, San
Francisco Medical Center. Trimble’s right kidney was ultimately
removed during the final procedure.
Trimble didn’t file his medical-malpractice claims against
Fightlin until July 2013. According to the courts, the one-year
statute of limitations started running after the first procedure in
July 2012. That meant the filing was late.
In their suit, Trimble’s legal team argued that since second and
third surgery attempts were made to remove the wire, the original
statute of limitations should have been tolled until all procedures
were complete and Trimble knew the full extent of his injuries.
Michael A. Kelly, a personal-injury attorney with Walkup,
Melodia, Kelly and Schoenberger, told the Northern California
Record that Trimble’s team may have a point.
“I think the dissent is correct. The real issue here is (that)
the second surgery to try and fix this made it worse,” Kelly said.
Kelly emphasized that “the real question is, when does (Trimble)
learn of that (second) injury… The dissent argues that,
realistically, (Trimble) has a year from the UCSF surgery. And I
think there’s a case to be made from that.”
However, Kelly pointed out that California’s
statute-of-limitations law cannot be ignored.
“I think (Trimble’s lawyers) did not correctly calculate the
statute of limitations and the sending of the first notice of
intention … I think there’s a realistic argument that the statute
may have started to run as soon as the doctor revealed the problem,”
For Kelly, the tolling argument does not hold.
“It’s off-point (because) there is no tolling in the case of a
foreign body where (that patient) knows the foreign body is there,”
Trimble’s team also tried to argue a tolling of the statute
based on the fact that Trimble remained a patient of Fightlin’s
until October 2012.
But, according to Kelly, continuing doctor-patient privilege meant
there never had been any tolling.
“If you read between the lines here, the lawyers got this not
quite correct as they did their work of articulating and defining
both in their complaint and in their 90-day letters when the times
began and what the injuries complained of were,” he said.
Trimble is represented by Monrae L. English of Wild,
Carter & Tipton