249 P.3d 1156
Idaho2011Background
- Stuard underwent spinal surgery on July 15, 2004 performed by Dr. Jorgenson at the T5-6 level instead of T6-7.
- Postoperative symptoms temporarily resolved and the error remained undiscovered until after Stuard’s second work injury in 2006.
- MRI in 2006 eventually confirmed the wrong-level operation; discovery occurred after a nurse case manager reviewed radiology results.
- Stuard filed a prelitigation screening panel request in April 2007 and a complaint in February 2008; district court granted summary judgment in 2009.
- District court held accrual at the time of the negligent surgery (July 15, 2004) and rejected the foreign-object exception; the decision was affirmed on appeal.
- Dissent questioned whether some damage was objectively ascertainable at the time of the first operation and urged remand for factual development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual date when some damage was objectively ascertainable | Stuard argues accrual should defer until discovery of damage. | Jorgenson argues accrual occurred at the time of surgery because damage was objectively ascertainable then. | Accrual occurred at the first surgery; some damage was objectively ascertainable then. |
| Foreign object exception applicability to locking plate/hardware | Locking plate may constitute a foreign object left inadvertently. | Hardware was intentionally placed for medical purposes, not a foreign object. | Foreign object exception does not apply; hardware was intentionally placed for treatment. |
Key Cases Cited
- Conway v. Sonntag, 141 Idaho 144 (2005) (two-year accrual rule for professional malpractice; some damage requirement)
- Davis v. Moran, 112 Idaho 703 (1987) (objective ascertainability required to trigger accrual; unusual contexts like radiation)
- Lapham v. Stewart, 137 Idaho 582 (2002) (some damage must exist for accrual; not based on knowledge)
- Chicoine v. Bignall, 122 Idaho 482 (1992) (objectively proves some monetary damage before accrual (legal malpractice context))
- Buxton, 146 Idaho 656 (2009) (monetary damage must be established before accrual (legal malpractice))
- Hawley v. Green, 117 Idaho 498 (1990) (objective proof of damage required; tumor example)
- Ogle v. De Sano, 107 Idaho 872 (Ct. App. 1984) (foreign object exception excludes devices implanted with consent)