Surgical tool left inside of patient is medical malpractice

John Fisher
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Stopping Medical Injustice

Medical malpractice is a subcategory of negligence.  Medical malpractice, therefore, happens when a medical professional commits a negligent act while treating a patient.  Any type of medical professional can be held liable under medical malpractice; general practitioners, surgeons, podiatrists, dentists, nurses, assistants, etc.

Experienced Kingston medical malpractice attorneys are familiar with a subcategory of medical malpractice itself.  This is medical malpractice founded upon a foreign object being left inside a patient’s body.  This doesn’t mean just any object.

Specifically, a foreign object in medical malpractice is any object unnatural to the human body that was unintentionally placed inside a patient.  A pace maker is not a foreign object, for example, because such is intentionally placed inside the heart patient’s body.  Components of a hip replacement are likewise not foreign objects.  If a patient has problems associated with these types of devices, a medical malpractice claim would have to be founded upon a different theory of medical malpractice. 

So, than, what is a foreign object?  Typically seen is the sponge, gauze, surgical clamp, glove, scalpel, or other such tool that was used during surgery, and then inadvertently left inside the patient.  While the medical field has introduced procedures, such as sponge counts, to eliminate this problem, the problem still exists.  When such an item is left inside a surgical patient’s body, a negligent act has occurred. 

What happens when these objects are left inside a patient?  Our clients have experienced extreme pain and suffering; bleeding; infection; and the need to undergo remedial surgery that otherwise would not have been necessary.

The normal statute of limitations for medical malpractice claims in New York is two and a half years from the date on which the negligence occurs.  However, in foreign object cases, the limitations period can be extended.  Obviously this is because a foreign object may not be discovered for several or more years.

Therefore, the statute of limitations for foreign object medical malpractice is as follows: if the two and a half years has elapsed, the plaintiff patient has one year from discovering the object to commence litigation, or one year after the patient had knowledge of facts that could lead to the discovery of the object. 

To illustrate, here is an example.  A patient has surgery and a surgical sponge is left in her body.  This happened on January 2nd of 2001.  The patient felt fine until January of 2014.  Three years had passed and typically the claim would be barred.  However, this involves a foreign object.  The patient didn’t know about the sponge, nor did she have reason to know.  Now that she has found out about the object, she has until January 2015 to commence a lawsuit.   

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com

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