Sommers Schwartz Attorney Charlie Ash recently secured a procedural victory for the estate of a man who lived for eight years after a heart bypass with a 4-inch-by-4-inch surgical sponge next to his heart after it was left there by the cardiac team.

As reported by the Detroit Free Press and MLive, John Doyle underwent cardiac bypass surgery in 2003 at Covenant Healthcare. Forty sponges were used during the operation, but only 39 were recovered, a fact that was never in dispute. The patient was discharged, unaware of the mistake.

For the next eight years, Mr. Doyle experienced shortness of breath, fatigue, sweating, and pain that was never diagnosed, and given that he was never told about the missing sponge, he could not have suspected or discovered its presence.

On July 6, 2011, Mr. Doyle went to the emergency room due to ongoing complications that then included difficulty in breathing. An echocardiogram was performed and revealed a large mass suspected to be a tumor. Dr. Christopher Genco, the same doctor who operated on Mr. Doyle in 2003, performed a surgery to reopen his chest to remove the mass.

The mass turned out to be the missing sponge, which by then was infected and surrounded by “green foul fluid.” Dr. Genco removed the sponge and the patient was treated with intravenous antibiotics and extensive post-operative care and rehabilitation.

Mr. Doyle filed suit against Covenant and Dr. Genco on June 6, 2012, claiming that the defendants were negligent in failing to account for the missing surgical sponge, which caused his subsequent pain, suffering, and damages.

Under Michigan law, a person asserting a claim of medical malpractice has two years from the date alleged act or failure to act to file a lawsuit. Alternatively, the suit can be filed six months from when the alleged malpractice was discovered, or reasonably should have been discovered, if two years have passed. However, no claim may be brought more than six years after the act or omission, unless the doctor or health care provider fraudulently concealed the malpractice.

The defendants moved to dismiss Mr. Doyle’s lawsuit, arguing that the statute of limitations had lapsed, and Saginaw County Circuit Judge Robert L. Kaczmarek agreed.  On appeal, the Michigan Court of Appeals reversed, finding that because Dr. Genco failed to inform his patient, “his silence is what allowed a sponge to remain inside Mr. Doyle’s body for eight years and it is the very reason Mr. Doyle was not able to timely file his malpractice action.”  In its March 3, 2016 opinion, the Court of Appeals held that Dr. Genco had a fiduciary duty to disclose the problem, and that the breach of that duty constituted fraudulent concealment.

Though Mr. Doyle died on Sept. 27, 2015 while the appeal was pending, the lawsuit will proceed, giving his estate the chance to argue Mr. Doyle’s case before a jury.