This section contains the nature of the case and procedural background.

Robert underwent surgery to have an ulcer repaired. After the surgery, Robert soon developed a fever and his white blood cell count became elevated, suggesting an infection. On August 8, 2003, it was determined that a sponge had been left inside Robert's abdominal cavity. That same day, the sponge was removed. Robert died on August 11, 2003, from sepsis allegedly associated with the retained sponge. On August 9, 2006, P filed suit against the doctors and support staff involved in Robert's surgery, as well as OHIC Insurance Company and others. P alleged medical negligence and wrongful death. D moved for summary judgment, arguing that P's claims were barred by the medical negligence statute of limitations. P claimed that Robert's 'injury' did not occur until on or after August 9, 2003, because his condition did not become irreversible until at least that date and the claims were therefore timely, having been filed within three years of such 'injury.' The court granted the motion concluding that Robert suffered an 'injury' triggering the statute of limitations no later than August 8, 2003, when the second surgery to remove the sponge occurred. The court dismissed the estate's claim, filed on August 9, 2006, as untimely. The court also rejected P's argument that her wrongful death claim accrued on the date of Robert's death holding that claims based on medical negligence run from the date of the underlying 'injury.' P appealed.

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