Idaho SC upholds spine surgery ruling

By Jessica M. Karmasek | Apr 11, 2011

BOISE, Idaho (Legal Newsline) -- The Idaho Supreme Court has upheld a district court's ruling in favor of a physician who negligently performed a spinal surgery on a patient.

Dr. Samuel Jorgenson operated on the plaintiff, Patrick Stuard, for a work-related injury on July 15, 2004.

Following the surgery, Stuard's pain level improved and his symptoms subsided.

It wasn't until more than two years later -- after Stuard suffered a second work-related injury on Aug. 31, 2006 -- that Jorgenson realized he operated at the wrong spinal level.

At issue is the two-year statute of limitations. The parties dispute whether the cause of action accrued at the time of the surgery or, instead, at the time the mistake became known.

The district court granted summary judgment to Jorgenson. It held that the cause of action accrued at the time of the surgery, and was therefore barred.

Stuard appealed to the state's high court.

The Court, in its 11-page majority opinion, affirmed the district court's grant of summary judgment. Justice Warren E. Jones wrote the opinion, filed April 1.

Stuard's malpractice action, it said, accrued at the time of the surgery because "some damage was objectively ascertainable" at that time.

"The facts of this case are admittedly unique, in that neither party can explain why Stuard's symptoms subsided when his herniated disk injury was not correctly treated," the Court wrote.

"However, this Court has made very clear that '(w)hether there was some damage, or whether that damage was objectively ascertainable, does not depend upon the knowledge of the injured party' because such dependence would effectively create a discovery rule, which the legislature has expressly rejected.

"Therefore, subjective knowledge of Stuard's injury is not relevant to the determination of when 'some damage' occurred under Idaho's clear legislative direction and the case law following it."

The Court said the "foreign object" exception also does not apply.

The locking plate and other hardware, it said, were intentionally left within the body for the purpose of medical treatment.

"Stuard argues that because the locking plate and other hardware were installed as a result of Dr. Jorgenson's negligence, they were 'inadvertently left,'" the Court wrote. "However, the statute and case law cited require that the inadvertence be in the leaving of the foreign object, not in the performance of the surgery."

Costs were awarded to Jorgenson.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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