I recently read that each year there are approximately 4,000 reported cases of patients who have had surgical items left behind in their body after a surgery. These are 4,000 reported cases known in the legal and medical world as retained surgical items, or the technical term a foreign object. When this happens it is most likely medical malpractice; generally using the res ipsa loquitor theory of negligence.
In most of these cases, the foreign object left behind is a medical sponge used during surgery. The seminal New York medical malpractice case is Kambat v. St. Francis Hospital, where a laparotomy pad was left inside of a patient which resulted in a massive infection and abscess. The New York Court of Appeals held that the doctor was liable for negligence because of the foreign object. However, this is not just limited to pads—that is just the most common instance. There are cases where clamps, scalpels or other medical tools are left inside the patient. In four out of the five of the cases reported, where a sponge is left inside the patient’s body the surgical team declared that all of the sponges were accounted for.
Everyone knows that after you have surgery nothing should be left in your body that was not specifically meant by the doctors to be left behind. Also, as the patient you should know if something will be left inside you body. If and when a foreign object is left behind it can cause serious medical issues and complications for a patient, both physically and mentally. Recently, I read a New York medical malpractice case from an article about a nurse who underwent a hysterectomy in 2001, however, in 2005, when she started to experience severe stomach pains was it discovered that a surgical sponge had been left in her abdomen from the 2001 hysterectomy. Due the sponge left behind in 2001, this woman has experience many medical problems that continue to prevent her from working and carrying on her daily life. Also, she was required to undergo additional surgery to remove the sponge and attempt to correct the damage caused by the sponge being left inside her abdomen for so long.
It is essential that if a foreign object is left in your body or a family member is discovered to have a foreign object, that you know your rights. In New York, medical malpractice has specific rules created by the legislature to ensure that patients still have a legal remedy if a foreign object is discovered. In a typical medical malpractice case, a patient only has two and a half years to bring a suit against the doctor; however, it could take years for a foreign object to be discovered in a patient. In New York, a patient has one year after the discovery of the foreign object to bring a malpractice suit. It does not matter if the date of discovery is more than two and half years after the surgery, a patient still has one year to file a malpractice suit from the date of the foreign object’s discovery.
It is extremely important that if a foreign object is discovered after a surgical procedure that you seek legal advice immediately. Particularly, because a New York medical malpractice lawsuit must be filed within two and a half years. There may be several future problems that come into play due to a foreign object and everyone should be properly represented if something like this happens to you.
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