The victim of a wrong-site spinal surgery who found out about the error more than 2 years after it occurred has lost his bid to sue for malpractice because he didn't take legal action until after Idaho's 2-year statute of limitations had passed.

Neither Samuel Jorgenson, MD, nor his patient, Patrick Stuard, realized back in July 2004 that Dr. Jorgenson had operated on the T6-7 level instead of the intended T5-6 level of Mr. Stuard's spine to relieve a work-related back injury. With the patient's consent, Dr. Jorgenson removed tissue and disk material from Mr. Stuard's back, drilled holes into his spine and installed a plate to stabilize and support it, according to court documents.

In several follow-up visits over the next 2 years, Dr. Jorgenson observed that his patient's pain was relieved and ordered several chest X-rays, which only showed a portion of the spine and therefore didn't let Dr. Jorgenson "accurately asses the actual levels where the hardware was placed," according to the surgeon's deposition testimony.

In August 2006, Mr. Stuard suffered another work-related back injury, and Dr. Jorgenson ordered an MRI the following month to assess the damage. It was then that Dr. Jorgenson discovered that he'd performed the 2004 surgery in the wrong place. He informed Mr. Stuard of the mistake in November 2006, telling him the he believed the new symptoms were from the old injury, which had never actually been treated.

After undergoing corrective surgery by a different physician, Mr. Stuard filed a medical malpractice complaint and demand for jury trial against Dr. Jorgenson in February 2008 — roughly 3 and a half years after the negligent surgery. In Idaho, legal action in a medical malpractice case must begin within 2 years after the patient sustained "some damage" that was objectively ascertainable, except in cases when a foreign object is left in a patient's body or the damage has been fraudulently concealed, according to court documents.

Dr. Jorgenson raised the statute of limitations defense in this case, arguing that the cause of action occurred more than 2 years prior, during the July 2004 wrong-site surgery. Mr. Stuard countered that he didn't suffer any damage until August 2006, when he began feeling symptoms in his back again, and that the implants placed during the first surgery constituted a "foreign object," bringing the discovery rule into play.

In an April 1, 2011, ruling upholding the district court's summary judgment in Dr. Jorgenson's favor, the Supreme Court of Idaho also sided with the surgeon, finding that under current law, the damage Mr. Stuard sustained occurred on the date of the initial surgery and would have been "objectively ascertainable" at that time if an MRI had been ordered. Further, because Mr. Stuard consented to the procedure, which involved the intentional placement of a medical device for treatment purposes, the implants could not be considered a "foreign object" under the statute of limitations for medical malpractice.

Irene Tsikitas