Ringewald v. Crawford W. Long Memorial Hospital

368 S.E.2d 490, 258 Ga. 302, 1988 Ga. LEXIS 242

• Court: Supreme Court of Georgia
• Decided: May 27, 1988
• Docket: 45182
• Status: Published

Opinions

Hunt, Justice.

After a bulldog clamp was left in his chest during quadruple bypass surgery on July 3, 1984, Dr. Robert H. Ringewald underwent a second operation that same day to remove the clamp. Dr. Ringewald alleges that the negligence of forgetting the clamp ultimately led to his suffering several complications arising from the second operation.

Dr. Ringewald filed his claim on July 1, 1986, within two years of the surgery, thereby complying with OCGA § 9-3-71:

Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred. [Emphasis supplied.]

However, his claim, filed more than one year from the date the clamp was discovered, fell outside the statute of limitations provided by OCGA § 9-3-72:

The limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered. For the purposes of this Code Section, the term “foreign object” shall not include a chemical compound, fixation device, or prosthetic aid or device. [Emphasis supplied.]¹

The defendants associated with the operation were granted summary judgment based on the foreign object statute of limitation, and that judgment was affirmed by the Court of Appeals. Ringewald v. Crawford W. Long Memorial Hosp., 184 Ga. App. 569 (362 SE2d 105) (1987). We granted certiorari to determine the effect of the one-year foreign object statute upon the two-year statute of limitations for medical malpractice.

1. Dr. Ringewald contends that OCGA § 9-3-72 should be interpreted not to reduce the general two-year limit, but to expand it by providing in all foreign object cases, a one-year extension from the date of discovery.²

Nevertheless, we must agree with the Court of Appeals that

there is nothing ambiguous about the statute’s requirement that the action must be brought within one year of the discovery of the foreign object, regardless of whether this has the effect of extending or diminishing the general limitation period for a medical malpractice action.

Ringewald v. Crawford W. Long Memorial Hosp., supra, 184 Ga. App. at 569.

The point is plain: OCGA § 9-3-71 simply does not apply to the negligence contemplated by OCGA § 9-3-72. When a statute

is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.

Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

Thus, in a foreign object claim, the patient has one year following discovery of the foreign object to bring his complaint, no matter whether the date of discovery is within or beyond the limitation period provided by OCGA § 9-3-71.

2. Dr. Ringewald also argues that a bulldog clamp is a fixation device, i.e., something not considered a foreign object under OCGA § 9-3-72 and therefore excluded from its provisions. Sutures, pins, plates and dental bridges would, for example, ordinarily be considered fixation devices; they are intended to remain within the body after surgery to serve a medical purpose. A bulldog clamp, on the other hand, is an arterial clamp used during surgery to occlude the vein graft temporarily, and it is undisputed that it ought to be removed at the conclusion of the operation. Hence, a bulldog clamp unintentionally left in the body following surgery is a “foreign object.” See for example Shannon v. Thornton, 155 Ga. App. 670 (272 SE2d 535) (1980).

Because the bulldog clamp, as used in this case, was a foreign object, and because the complaint was filed more than one year after its discovery, Dr. Ringewald’s complaint was time barred. The Court of Appeals correctly affirmed the trial court’s grant of summary judgment to the parties defendant.

Judgment affirmed.

All the Justices concur, except Clarke, P. J., Smith and Weltner, JJ., who dissent as to Division 1 and the judgment.

1 OCGA § 9-3-72 was not changed at the time of the 1985 amendment to OCGA § 9-3-71 (which added a statute of repose) even though our Court of Appeals in Hambrick v. Ray, 171 Ga. App. 60 (318 SE2d 790) (1984), applied the foreign object exception as we do here. Presumably, OCGA § 9-3-72 would also have been changed had the General Assembly disagreed with this interpretation.

2 There would, of course, be instances where the provisions of OCGA § 9-3-72 would extend the time for filing a complaint beyond the ordinary two-year statute, but this is not one of them.

For example, in Ivey v. Scoggins, 163 Ga. App. 741 (295 SE2d 164) (1982), the discovery of the foreign object was more than six years after the operation. There, the Court of Appeals, applying the foreign object exception, reversed the grant of summary judgment based on the two-year statute.