Texas Open Courts Doctrine allows retained sponge medical malpractice suits to be filed after statute of limitations

According to healthcare accrediting agencies such as The Joint Commission, unintended retained surgical objects are sentinel events. This means that under the standard of care and accreditation mandates, it’s a “never event” for surgeons and operating room staff to ever leave items such as sponges, surgical towels, or sharps (needles) in a patient’s body after surgery.

Despite these high standards, these incidents continue to occur. Over the past few years, we’ve represented clients who’ve faced medical problems and additional surgeries over retained sponges, as well as two separate cases where large surgical towels were left in patient abdomens.

From a legal perspective, these pose some interesting issues because of the fact that the surgeon or operating room staff left something inside of them is inherently and discoverable to a patient.

Texas law has rather strict deadlines as to when a medical malpractice claim may be filed. The two-year statute of limitations generally begins ticking when the medical malpractice incident occurred. There are some legal doctrines, though, that can be used to toll or extend the statute of limitations.

Retained surgical items are the textbook example for application of the uniquely Texan protection for plaintiffs called the Open Courts Doctrine. The Open Courts provision of the Texas Constitution states that all “courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

In addition to the two-year statute of limitations, the 2003 round of tort reform created a 10-year statute of repose that’s intended to close the door on any healthcare liability claims.

In interpreting the statute, though, the Texas Supreme Court has held that retained sponge cases are a unique type of claim that falls within the Open Courts Doctrine and, thus, can defeat both the two-year statute of limitations and the 10-year statute of repose.

One of the best opinions discussing the Open Courts Doctrine in retained sponge cases was entered by the Texas Supreme Court back in 2010. The case is styled Walters v. Cleveland Regional Medical Center et al., 307 S.W.3d 292 (Tex. 2010). You can read the opinion here.


In that case, a gynecologist performed a tubal ligation on a patient following the birth of her child. As required by the standard of care, the operating room staff counted all sponges that were used.

The purpose of a count at the end of a surgery is to make sure that no disposal items are accidentally left inside the patient’s body. Unfortunately, in violation of the standard of care, the count was wrong and a sponge was left inside the patient’s body.

After the surgery, the patient complained about abdominal cramping, but the hospital nursing staff downplayed the concerns as being normal after childbirth and from having gas pumped into her abdomen for the procedure.

In a follow-up appointment with the gynecologist a week after surgery, the patient shared that she continued have cramping. The gynecologist felt that the cramping wasn’t worrisome because it was caused by uterine contractions that are common when a mom is nursing her child.

Over the next nearly 10 years, the patient saw a number of physicians from different specialties about various medical conditions. She was given different diagnoses, but nothing seemed to help alleviate her ongoing pain and discomfort. Her medical records were clear about one thing, though: Her pain was getting progressively worse.

Finally, over nine years after her tubal ligation surgery, she saw a new gynecologist, who discovered an unusual lump. He referred her to a surgeon, who took her to the operating room for surgery and discovered the long-retained sponge.

Less than two months after that surgery, the patient filed a lawsuit against the original hospital and gynecologist. The defendants quickly moved for summary judgment, alleging that her claim was barred by the two-year statute of limitations.

The trial court ruled in favor of the defendants, dismissing the case. The Houston court of appeals affirmed the decision, and the plaintiff took it to the Texas Supreme Court, where the court entered an order reducing the lower court decisions, concluding that:

“Sponge cases are sui generis. They rarely occur, they never occur absent negligence, and when they do occur, laypeople are hard-pressed to discover the wrong. Our cases recognize this, as do many legislatures, which exempt foreign-object claims from limitations and repose periods. Our own Legislature imposed a reasonable ten-year repose period on all malpractice claims-with no carve-out for sponge cases-a statute we uphold today in Rankin against an Open Courts challenge. The Legislature did nothing to alter courts' treatment of late-filed sponge cases following Neagle, where we allowed an Open Courts challenge to limitations. Treating the two-year limitations period as absolute in all circumstances would render the new statute of repose meaningless.”

The application of the statute of limitations in statutory repose in Texas law can be complicated for inexperienced attorneys. If you been seriously injured from health care in Texas and have concerns that your claim may be time-barred, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.