Call us today at 281-580-8800 or email us at

When there's a retained foreign body after surgery, the Open Courts provision of the Texas Constitution may be helpful to plaintiffs Contact Now

Dallas court of appeals upholds plaintiff's jury verdict in medical malpractice lawsuit filed after two-year statute of limitations

When there's a retained foreign body after surgery, the Open Courts provision of the Texas Constitution may be helpful to plaintiffs

In August 2019, the Dallas Court of Appeals recently entered an opinion that provides insights on how the Open Courts provision of the Texas Constitution might help medical malpractice plaintiffs who have missed the standard two-year statute of limitations deadline.

The case is styled Charles Chang, M.D. v. Ashley Denny, Case No. 05-17-01457-CV, on appeal from the 401st Judicial District Court of Collin County, Texas.

The underlying facts

Ashley Denny had a brain tumor and hired neurosurgeon Dr. Charles Chang to remove it. During the surgery, Dr. Chang violated hospital policy by using non-radiopaque cotton balls and separating at least one of the balls into pieces. After the surgery, one of the cotton balls was accidentally left in her brain.

The standard of care requires surgeons to use radiopaque disposable items in operative fields. Radiopaque items can be identified by x-ray, which is useful in complex surgeries to make sure items aren’t retained. Non-radiopaque items are not visible by x-ray. I’m working on a case now where a surgeon in one of the major hospitals of the Texas Medical Center used a large non-radiopaque surgical towel and left it in the patient’s abdomen. My point is that this type of clear negligence happens more often than you might think.

Back to what happened with Ashley Denny. Almost 5 years after her original surgery, an MRI showed a slight enlargement in the area, which was thought to be a residual tumor. Dr. Chang returned the patient to surgery a second time and found a cotton ball covered in scarred tissue stuck to her brain. The surgeon removed the cotton ball and what he described as a scant portion of the patient’s brain.

The jury found in favor of Ms. Denny, awarded her over $1 million in economic damages, and found that she had exercised due diligence in following her suit, even though it was beyond the two-year statute of limitations. Dr. Chang appealed, arguing that the judgment should be reversed on the basis of limitations.

What is the Open Courts provision?

Article 1, Section 13 of the Texas Constitution, known as the Open Courts provision, states that, “All courts shall be open, and every person for an injury done him, in his lands, goods, personal reputation, shall have remedy by due course of law.”)

In cases where a victim of medical malpractice was injured by a foreign object being left in her body, the Open Courts provision allows a reasonable opportunity for the patient to discover the injuries and file a medical malpractice lawsuit if the two-year limitations period has run.

While the effect may seem to be the same, the Open Courts provision is different than the discovery rule, in that the Open Courts provision doesn’t actually toll the limitations period. The Dallas court explained: “Unlike the discovery rule, which defers the accrual of the cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the claim, the open courts provision merely gives litigants a reasonable time to discover their injuries and file suit.”

The key to understanding a plaintiff’s rights under the Open Courts provision is to look at what evidence there is that the patient/plaintiff used due diligence to bring a lawsuit within a reasonable time after learning about the alleged negligence or wrong.

Houston’s First Court of Appeals previously held that a plaintiff has reasonable time to investigate, prepare, and file suit after discovering an injury. See Gagnier v. Wichelhaus, 17 S.W.3d 739, 745 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

The questions of what constitutes diligence and a reasonable time are questions of fact. Fact issues are normally determined by a jury.

The opinion in Chiang v. Kelly provides a useful outline of some evidence that was sufficient to uphold the jury’s verdict that the plaintiff/patient exercised diligence and reasonableness in waiting 25 months from the time she learned of the retained cotton ball to file her lawsuit, which was almost 7 years after the original surgery. The trial testimony showed evidence that:

• It took the patient eight months to find a doctor willing to treat her because doctors were fearful that they would be dragged into litigation. She reached out to doctors, neurologists, and neurosurgeons, but no one was willing to help her because of the mistake of the original surgeon.

• During that eight-month period, she called a hospital daily in an attempt to meet with a doctor, until finally someone set up an appointment.

• There were times that she was either physically or emotionally not well and could not help her lawyer or even take his phone calls.

• Her physical and emotional symptoms were significantly different after the second surgery, as compared to after the first surgery. She was found to be 100% disabled after the second surgery and described new problems including throbbing daily headaches, memory loss, seizures, pain, and numbness. She took 17 pills per day to try to keep her symptoms under control.

Based on evidence, the Dallas Court of Appeals found that there was a sufficient evidentiary basis to support the jury’s finding that the plaintiff’s efforts to pursue a lawsuit were both diligent and reasonable.

I encourage patients who’ve been injured because of medical mistakes and errors to seek legal representation from a top-rated experienced Houston, Texas medical malpractice lawyer as soon as possible. 

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, 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 by calling 281-580-8800 or emailing him right now.

// Read full biography
// Read more expertise by Robert Painter

Discover More