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The family of a man who died after his surgeons left a sponge inside his abdomen filed a medical malpractice suit just one day too late, ruled a judge who threw out the case on the grounds that the statute of limitations was up by a day.

According to the state law, the statute of limitations for a medical malpractice case is three years from the date of injury. Whether the “injury” date was defined as the day the sponge was removed in the second surgery or when the man died three days later was the issue.

Daniel George, Columbia County Circuit Court Judge, ruled on Thursday that the three-year period had begun on August 8, 2003, the day that Robert Genrich underwent a second surgery to have the sponge removed.

Kathy Genrich, filed the suit on August 9, 2006 alleging that Meriter Hospital in Madison and their insurance company were both liable for her husband’s death. Hospital attorneys conceded that the surgeons left the sponge in Genrich’s abdomen when he had surgery on July 23, 2003. But the Corneille Law Group argued in a motion that the lawsuit was filed a day too late.

“The statute of limitations started to run no later than Aug. 8, 2003, and it expired on Aug. 8, 2006, one day before this lawsuit was filed,” the attorneys argued.

Portage attorney Jason Studinski, who represented the Genrich family, had stated in a previous legal matter that the sponge was discovered Aug. 8, 2003. But he argued that Genrich’s date of death should be considered the date of injury.

“A closer examination of the law and facts exposes the fallacy of the defense’s arguments and reveals that the statute of limitations did not start running until Aug. 11, 2003, such that it would have run until Aug. 11, 2006,” Studinski wrote in a rebuttal.

Judge Daniel George ruled that the law considered the statute of limitations to have started on August. 8, 2003, which meant it would have run out when the suit was filed on August. 9, 2006.

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