Northern California Record

Tuesday, November 12, 2019

Medical-malpractice claim regarding wire in patient dismissed by California appellate court

By Jessica Caimi | Feb 15, 2017

Medical malpractice 07

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, had expired.

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,” he said.

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,” he said.

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

Want to get notified whenever we write about California 5th District Court of Appeal ?

Sign-up Next time we write about California 5th District Court of Appeal, we'll email you a link to the story. You may edit your settings or unsubscribe at any time.

Organizations in this Story

California 5th District Court of Appeal