Mass. Court Lets Latex Lawsuit Stand

A patient whose latex sensitivity allegedly worsened after latex supplies were used during surgery didn't disclose her plans to sue the surgeon when she filed for bankruptcy. However, this shouldn't bar her medical malpractice lawsuit from proceeding, a Massachusetts Superior Court judge has ruled.

Before undergoing surgery in April 2007, Stacey Perry-Flynn notified her surgeon, Thomas N. Maki, MD, of her latex allergy. During the surgery, though, Dr. Maki inserted 4 Penrose drains, according to court records. A circulating nurse, realizing the error, subsequently removed them. The following month, Ms. Perry-Flynn's allergist linked her increased sensitivity to latex to the surgical exposure to latex.

In June 2008, Ms. Perry-Flynn and her then-husband filed for bankruptcy. They dropped the motion the following month due to a change in their financial situation. In March 2010, Ms. Perry-Flynn sued Dr. Maki for negligence, claiming that his failure to exercise appropriate cautions regarding her latex allergy led to injury.

Attorneys for Dr. Maki requested that the case be dismissed, arguing that Ms. Perry-Flynn hadn't listed a potential legal action in the financial disclosures and reorganization plan of her bankruptcy filings, a fact which barred her from pursuing the lawsuit.

The superior court judge rejected this motion as borderline frivolous, however. In his September 2011 ruling, he notes that Ms. Perry-Flynn "did not seek to explore potential theories of recovery against the defendants prior to filing for bankruptcy" and that her "claim had not ripened at that point to be a significant asset requiring its disclosure in a bankruptcy petition."

Attorneys for Dr. Maki and Ms. Perry-Flynn could not be reached for comment.

David Bernard