Ms. Goodwin is manager of clinical risk and patient safety at Cambridge Health Alliance, Cambridge, MA.
"The plaintiff alleged that she notified the urologist of her continuing pain and was told there was nothing wrong," writes Brianne Goodwin, JD, RN.
In the case discussed below, the plaintiff attempted to make use of what is known as the “continuing course of treatment doctrine.” The continuing course of treatment doctrine allows the statute of limitations to be tolled while the defendant is still providing medical care to the plaintiff. The general policy on this doctrine is that if a patient continues to be treated by a physician or provider, the patient should not be required to stop the treatment to commence litigation simply because a statute of limitations is about to expire.
Anchor driver piece found near pelvic bone
In 2001, a defendant urologist performed a bladder suspension surgery on the plaintiff to address incontinence. During the surgery, the defendant urologist placed titanium anchors into the plaintiff’s pelvic bone by the use of an anchor driver, a metal device. In 2015, part of an anchor driver was found inside the plaintiff’s body near her pelvic bone and was removed. In 2016, the plaintiff filed a medical malpractice complaint against the health care facility and multiple physicians, including the urologist who performed the 2001 procedure.
In her complaint, the plaintiff alleged she presented to the facility in January 2001 with a symptomatic cystocele and some stress incontinence. She was seen by the defendant urologist, who performed surgery on her in the form of an endoscopic bladder suspension.
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During the procedure, the defendant urologist used anchors to support the suspension. The plaintiff asserted that after the bladder suspension surgery, she experienced unusual pain in her pelvic area. The plaintiff alleged that she notified the urologist of her continuing pain and was told there was nothing wrong. Specifically, she alleged that she returned to defendants twice in 2004, again in 2009, and in 2012, complaining of continued pain that she associated with the surgical procedure in 2001.
The plaintiff asserted that diagnostic imaging was performed at all four visits and each time she was informed that the imaging showed nothing that could account for her painful symptoms. However, according to the plaintiff, the x-rays from 2009 and 2012 clearly showed a foreign body in her pelvis.
The plaintiff additionally alleged that she underwent a second surgical procedure with the defendant urologist in 2012 in the form of a bladder instillation and transvaginal obturator tape procedure. When consulting with the urologist about the second surgery, the plaintiff complained that she felt as if something were poking into her in her pelvic region. The plaintiff asserted that the urologist dismissed her concerns.
In 2014, the plaintiff presented to an emergency department with pain. At this visit, the plaintiff underwent a computed tomography scan of her abdomen and pelvis. According to the plaintiff, a radiologist read the scan and noted a 2.2-cm metallic object.
The plaintiff alleged when she next returned to the health care facility in 2015 reporting pain, she was ultimately diagnosed with pubic cellulitis overlaying retained public symphysis hardware. She stated she was informed that she might have an anchor in her pubic bone that needed to be removed and was transferred to a tertiary hospital. The plaintiff alleged that another x-ray report noted the anchor device from her surgery and opined that it may represent a piece of broken hardware.
The plaintiff subsequently underwent surgery at the hospital to remove the object, which she asserted proved to be the instrument part that was used to place anchors for the bladder surgery and was abandoned by the defendant urologist and left within her.
Next:"The plaintiff alleged that the health care facility and the defendant urologist were negligent in several respects"The plaintiff alleged that the health care facility and the defendant urologist were negligent in several respects, including failing to account for the medical devices used or placed in the plaintiff’s body during the 2001 bladder surgery; continually misinforming or misleading the plaintiff regarding the presence of the foreign body in or around her pelvis through 2015; allowing the foreign metallic body to remain in the plaintiff through June 2015, despite specific complaints, examinations, and radiology studies that demonstrated its presence; failing to follow up on the 2014 radiology report indicating the presence of a metallic object; and failing to diagnose or recognize the presence of a foreign body instrument left within the plaintiff.
As to only the defendant urologist, the plaintiff additionally alleged negligence based on his/her failure to adequately examine plaintiff’s 2009 and 2012 radiology films and 2014 CT scan and report, adequately examine the plaintiff, refer the plaintiff to another treatment provider, and consult with radiologists or other medical professionals regarding the plaintiff’s long-term and continuing complaints of pelvic pain.
Does continuing course doctrine apply?
Given that there was a span of 14 years between the original surgical procedure and the 2015 procedure where the metallic object was removed, the plaintiff had to set forth a legal theory that tolled the statute of limitations. She purported that the continuing course of treatment doctrine applied and cited the several times in between 2001 and 2015 that she returned to the defendant reporting pelvic pain.
What was discovered at trial, however, was that in 2004, the plaintiff moved out of state, not returning to the health care facility or the defendant urologist until 2009 and 2012, respectively. When the plaintiff did return in 2009 and 2012, she returned for complaints unrelated to her previous pelvic pain. Therefore, the court held that the plaintiff’s course of treatment ended in 2004, and therefore the doctrine did not apply.
Not all states have applied the continuing course of treatment doctrine, and where it has been applied, there are many nuances and variations. Providers interested in knowing the rule in their own jurisdiction should consult with the appropriate legal authority in their facility or organization.
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