Mar. 16--A Texas woman who discovered that a sponge had been left inside her during a hysterectomy does not have the right to sue the hospital and doctor because more than 10 years had lapsed before the surgical error was discovered, the Texas Supreme Court has ruled.

The court, overturning an appeals court decision, upheld a state law that sets a 10-year limit for consumers to file medical malpractice claims, even when a medical error is not discovered within that period.

"Giving wide berth to the Legislature's policy judgments, as we must, we cannot say lawmakers offended the Constitution by cutting off malpractice claims after giving claimants a decade to bring suit," Justice Don Willett wrote in the opinion.

The opinion points out that the law was enacted to curb liability claims against physicians and notes, "We have recognized 'that the length of time that insureds are exposed to potential liability has a bearing on the rates that insurers must charge.'"

Critics, however, said the ruling denies patients injured by negligence the right to have their cases heard in court if it takes years to figure out what's wrong.

"You can be sick for a very long time before you realize the problem is a sponge that was left behind," said Alex Winslow, executive director of Texas Watch, a consumer advocacy group in Austin. "This is the direction we've been going in ... for a long time -- this sort of overzealous protection of insurance companies and the medical industry at the expense of patients with valid legal claims."

The original suit was filed by Emmalene Rankin, who consulted a doctor in July 2006 after having abdominal pain. It was discovered that a sponge had been left inside her during a hysterectomy in November 1995. She sued Methodist Healthcare System of San Antonio and two doctors.

Her lawsuit argued that the 10-year limit violated the "open courts" provision of the Texas Constitution.

Her attorney, Carl Robin Teague of San Antonio, said Rankin is disappointed in the ruling.

"For those people who are in the same situation ... who have not had a reasonable opportunity to discover the injury and bring suit, they will not have their day in court," he said.

In a similar case, the court also ruled Friday that a patient had up to two years to file a lawsuit alleging medical negligence as long as the 10-year limit had not passed.

In that case, a Houston-area woman sued Cleveland Regional Medical Center, the surgeon and a nurse after discovering about nine years after surgery that a sponge had been left inside her. The hospital argued that she should have filed suit within two years of the surgery, but the court held that she was only required to file suit within two years of discovering the error.

Dianna Hunt, 817-390-7084

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