Retained Foreign Object: Jury to Decide When Injury Occurred and When Patient Learned of It

​The Pennsylvania Superior Court reversed a trial court's award of summary judgment to the defendant hospital and cardiothoracic surgeon in a negligence action following retention of a chest tube in a patient's chest after a coronary artery bypass graft in 2004. Five years after the procedure, the patient sought treatment from three different pulmonologists for breathing difficulty; as a result, he and his family learned that there was a tube in his chest and were reportedly advised that having it removed would cause more harm than good. One of the pulmonologists later informed the patient by way of an undated letter that the retained chest tube was contributing to "a fibrotic reaction in the left pleural space." The patient, his daughter, and his son-in-law testified the letter arrived sometime in 2011 or 2012, after which the patient sued and later died.

The defense argued that the two-year statute of limitations allowed by Pennsylvania law began with the last pulmonology consult in 2009 (i.e., when the patient became aware of the tube in his chest). Although the trial court viewed the presence of the retained chest tube as an automatically actionable injury, they granted summary judgment because the patient did not file until almost 10 months after the end of the defense's interpretation of the two-year statute of limitations allowed by Pennsylvania law. The patient's...