Marietta Injury Lawyer Blog
When it comes to surgical procedures, any Georgia healthcare professional will tell you their top safety priority is ensuring the proper sterilization of any equipment that gets near the patient’s body. Indeed, there is always a risk of transmitting a potentially lethal infection to a patient, even during “routine” surgery.
Collett v. Olympus Optical Co.
Of course, doctors and nurses are only effective in preventing infections if they have the right tools. So, what happens when a medical device manufacturer produces a defective product? The patient may suffer an infection and be forced to seek damages in court.
Consider this pending federal lawsuit here in Georgia, Collett v. Olympus Optical Co. This case involves a particularly horrific example of a post-op infection. The plaintiffs are a married couple. The husband received what should have been a routine colonoscopy in 2011. Several weeks later, the husband “sought medical treatment for fever, night sweats, muscle pain, sore joints, and a skin rash,” according to court records. At the time, it was not clear what caused these symptoms.
But in 2013, nearly two years after the colonoscopy, the husband tested positive for HIV–and so did his wife. The plaintiffs were “shocked” by this diagnosis and “unable to determine any possible source of the infection.” It was not until 2017 when the husband was talking with his dentist that he learned about research into the “transmission of pathogens via flexible colonoscopes,” such as the one used in the husband’s colonoscopy six years earlier.
The plaintiffs met with the doctor responsible for that research. At that point, they realized the husband acquired HIV due to an infected colonoscope. The plaintiffs then filed a product liability lawsuit in Athens, Georgia, federal court against the manufacturer of the colonoscope, Olympus Optical, Inc., as well as the company that produced the disinfectant used to sterilize the device, Advanced Sterilization Products (ASP).
On December 11, 2018, U.S. District Judge Clay D. Land denied ASP’s motion for summary judgment. ASP argued the plaintiffs’ filed their lawsuit too late to comply with Georgia’s statute of limitations Judge Land disagreed. He explained that while Georgia has a two-year statute of limitations in personal injury cases, the clock does not start to run until the “plaintiff discovers or with reasonable diligence should have discovered that he was injured.”
ASP maintained this discovery date could be no later than 2013, when the plaintiffs tested positive for HIV. But Judge Land said that under Georgia law, the plaintiffs could plausibly argue the proper discovery date was when they first learned of the “causal connection” between their HIV-positive status and the allegedly tainted colonoscopy, which did not occur until 2017. In any event, the judge said determining when exactly the plaintiffs “knew or with reasonable diligence” made this connection is a question of fact for a jury to resolve.