Cefaratti v. Aranow
Absent evidence that a doctor or hospital possessed actual knowledge that a surgical sponge was left in a patient after surgery, the statute of limitations may not be tolled as a result of the continuing course of treatment or conduct doctrines, even if the patient continues to visit the doctor. Allegedly, the plaintiff, Lisa Cefaratti, underwent gastric bypass surgery on Dec. 8, 2003, and a surgical sponge was left in her abdomen. At the time of the surgery, the sponge count was reported as correct. After the surgery, the defendant doctor monitored the plaintiff's weight and nutrition. The plaintiff underwent outpatient laboratory work between May 2004 and March 2009. Although she suffered from abdominal pain, Cefaratti was unaware of the surgical sponge in her stomach until August 2009, when she underwent a CT scan. On Aug. 5, 2010, Cefaratti sued Shoreline Surgical Associates, Middlesex Hospital and the surgeon in charge of the gastric bypass surgery. The defendants moved to dismiss and argued that the plaintiff's complaint was not filed timely, prior to the expiration of the statute of limitations. The plaintiff objected that the defendant surgeon continued to treat her until March 2009.The court found that the continuing-course-of-treatment doctrine did not toll the statute of limitations. Post-surgical consultations between the plaintiff and the surgeon did not qualify as "treatment" for the purposes of the sponge that was left in the plaintiff's abdomen. "[T]he plaintiff," wrote the court, "could have had no reasonable expectation that she was being treated for a condition of which no one was aware." To allege a continuing course of conduct, evidence must exist of a breach of duty that remained in existence after the commission of the original wrong. No basis existed to allege that any defendant had actual knowledge of the sponge. The statute of limitations was not tolled as a result of the continuing-course-of-treatment or conduct doctrines, and the court granted the defendants' motion for summary judgment.