March 14, 2021

The State of Michigan Court of Appeals (“Michigan Appellate Court”) held in its unpublished opinion dated February 18, 2021, “there is no proof that defendants were aware that a towel was retained in plaintiff’s body following his February 2000 surgery. This fact is determinative in this case and it cannot be said that reasonable minds could differ regarding the legal effect of that fact. Accordingly, the trial court properly decided the merits of defendants’ motions for summary disposition.”

The Underlying Facts

Plaintiff underwent surgery on February 4, 2000 to remove a mass in his bowel. The mass was biopsied and determined to be noncancerous and otherwise benign. Plaintiff’s discharge summary indicated that the surgery was performed without complication; however, it eventually became apparent that a blue surgical towel was inadvertently left in plaintiff’s abdomen.

Nine years later, in 2009, plaintiff sought medical treatment for an unrelated issue involving his back, during which time he had imaging studies performed. The studies revealed there was another mass in plaintiff’s abdomen, which was subsequently biopsied and found to be consistent with another noncancerous growth. Thereafter, from 2009 to March 2017, plaintiff’s physicians continued to monitor possible growth of the mass. Initially, it reflected no growth but later revealed growth of the mass “in significant proportions,” and plaintiff had surgery to remove it in March 2017. A subsequent biopsy of the mass revealed that it was an encapsulated blue towel left inside plaintiff’s body cavity during the prior surgery performed by Dr. Heinzelmann. The towel was not a “surgical sponge,” and it did not have a radiopaque quality.

Plaintiffs filed a complaint against Dr. Heinzelmann and the members of the surgical staff who assisted Dr. Heinzelmann during the 2000 surgery. Plaintiffs alleged medical malpractice by Dr. Heinzelmann, medical neglect by defendants, and vicarious liability of defendant Covenant Healthcare. The complaint also raised claims of fraudulent concealment, assault and battery, res ipsa loquitur, and loss of consortium against all defendants. The parties participated in discovery, and each individual defendant was deposed. Thereafter, all defendants filed motions for summary disposition alleging that plaintiffs’ claims were barred by the statute of repose. The trial court agreed and granted summary disposition in defendants’ favor.

Michigan Statute Of Limitations For Medical Malpractice Claims

Generally, a two-year limitations period applies to medical malpractice claims. MCL 600.5805(8); MCL 600.5838a(1).

Statute Of Repose

“However, except as otherwise provided in section 5851(7) or (8), the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim.”

Fraudulent Concealment Exception

Under MCL 600.5838a(2)(a), a statutory exception exists, which provides that the statute of repose does not bar a claim “[i]f discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional against whom the claim is made or a named employee or agent of the health professional against whom the claim is made, or of the health facility against whom the claim is made or a named employee or agent of a health facility against whom the claim is made.” If, as a result of fraudulent conduct, a plaintiff is prevented from discovering the existence of a claim, the plaintiff has additional time, under MCL 600.5838a(3), to file his or her claim.

Generally, to establish fraudulent concealment, the plaintiff must prove that the defendant committed affirmative acts or misrepresentations that were designed to prevent subsequent discovery. The existence of fraudulent concealment can be shown when the plaintiff alleges facts that indicate that the defendant intentionally failed to disclose information so as to mislead the plaintiff, which would allow the period of limitations to expire before the plaintiff realizes he or she has a claim. However, the fiduciary must have knowledge, i.e. be aware, of that which was not disclosed (“No fraudulent concealment can be said to occur where [the defendant] is unaware of his malpractice.”).

Michigan Appellate Court Opinion

The Michigan Appellate Court stated, “Here, a fiduciary relationship existed between plaintiff and Dr. Heinzelmann … However, aside from alleging that defendants were agents of Dr. Heinzelmann and fraudulent concealment can be performed by any healthcare professional against whom the claim is being made or a named employee or agent of the healthcare professional, plaintiffs have not provided factual or legal support for their claim that the remaining defendants were Dr. Heinzelmann’s agents or otherwise owed a fiduciary duty to plaintiff.”

Furthermore, “plaintiffs failed to present facts establishing fraudulent conduct by any of the defendants in this case. The record reflects that no one on the surgical team, including Dr. Heinzelmann, knew that a blue towel had gone missing during plaintiff’s surgery, or that a blue towel was retained inside his body. Absent the requisite knowledge about the retained towel, the fiduciary exception to fraudulent conduct is inapplicable because “the fiduciary must have knowledge of that which was not disclosed” … there is no evidence that any of the healthcare providers intentionally left a towel in the patient or offered any information to mislead plaintiffs. There is nothing on the record indicating any defendant hindered plaintiff’s discovery of the towel or took any affirmative act that remotely approaches fraud. Accordingly, the facts of this case do not support plaintiffs’ claim of fraudulent concealment.”

“Dr. Heinzelmann did not perform counts of blue towels, did not know that a towel had been left behind, and was not aware of anyone who had knowledge of the retained towel. Moreover, there is no evidence to suggest that Dr. Heinzelmann failed to disclose known information at any point in an attempt to deprive plaintiffs of a potential cause of action … Even if Dr. Heinzelmann was wrong in his beliefs, such an alleged breach of the standard of care still would not constitute an intentional failure to disclose known, pertinent information, so as to deceive a plaintiff.”

Source Gatz v. Heinzelmann, No. 351278.

If you or a family member may have been injured as a result of an object left inside of you following a surgical procedure in Michigan or in another U.S. state, you should promptly consult with a Michigan medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your retained object medical malpractice claim for you and represent you or your family member in a retained object medical malpractice lawsuit, if appropriate.

Visit our website or telephone us on our toll-free line in the United States at 800-295-3959 to be connected with medical malpractice lawyers in your state who may assist you with your foreign object medical malpractice claim.

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