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If a surgical instrument is left inside of you, how much time do you have to file a lawsuit here in New York?

ARE YOU WORRIED ABOUT SURGICAL INSTRUMENTS BEING LEFT INSIDE OF YOU DURING SURGERY?

Do you know how common it is for surgical tools to get left behind in your body? This is not specific to any type of procedure, it can happen in any surgery anywhere and any time.

How common is it for surgical tools to get left behind in a patient's body?

No one wants to scare you off from getting surgery but this type of carelessness happens more often than we like to believe. Patients do finding surgical instruments left behind, sometimes even years after their initial surgery. The amount of time it takes to discover the instrument often depends on where in the body it was left and what kind of instrument it was.

In NY, how long do you have to file your claim?

New York law requires that patients bring medical malpractice claims within a certain period of time- this allotted time is known as the statute of limitations.

In New York you generally have only two and a half years from the date of the original wrongdoing to file a lawsuit against a private doctor or private hospital who you believe was negligent. [There are exceptions to this general rule.] 

There is a very big difference between whether a doctor intentionally left something inside of you that was intended to remain inside of you compared to a situation where the doctor left something inside that never, ever should have been left inside.

If the foreign object was something that was never intended to remain inside you, in New York, as of today, June 3, 2014, you would have only one year from the date of discovering this foreign object within which to file a lawsuit.

If the foreign body was something that was specifically intended to remain inside of you, then you would have to file a lawsuit within 2 1/2 years from the date of the wrongdoing. There are certain exceptions based upon whether this happened when you were a child or an adult or whether this happened in a municipal hospital or a state hospital.

WARNING:

**The only true way to know whether your matter is still timely is to speak to an experienced attorney who handles these cases on a daily basis.**

How do you realize a foreign object has been left behind?

Patients usually realize that a foreign object was left in the body when they start to feel pain or discomfort near the surgical site. In some cases, the pain and discomfort is far removed from the old surgical incision. Foreign objects have been known to migrate in your body.

Hypothetical Question...

If your surgery happened five years ago, and you now find something that was left inside of you, is your matter still timely?

To answer the question, I need to ask you a specific question.

The foreign object that was left inside of you, was that something that was intended to remain inside of you? Or, was this something that was never intended to remain inside of you? The answer to those questions will determine whether or not your matter is still timely.

Let me give you a great example.

A man recently got married and was attempting to have children.

For the longest time, he and his wife were unable to conceive. Fertility testing revealed that his wife was not the problem. Instead, he had the problem. Additional testing revealed that his testicles were making sperm, but they were simply not being released when he had sex.

It turns out, when he was very young he developed a painful condition known as a testicular torsion. This is a condition where the testicle twists upon itself and needs to be immediately surgically corrected before the restricted blood supply kills off the testicle. in this man's case, when he was young, a surgeon surgically corrected his twisted testicle.

In an attempt to prevent his testicle from twisting again, the surgeon placed a surgical stitch into the vas deferens, which is the tube leading from the testicle carrying the sperm, up to the penis. Unfortunately for this man, that stitch tied off that tube that allowed the sperm to travel from the testicle up and out of the penis.

Since this happened when he was young boy, he had no knowledge of this and no knowledge of how this would affect him in the future.

Now, as an adult, when he learned of the surgical mistake that was done more than 30 years earlier, he now has the burning question about whether or not his matter is still timely.

Using that scenario, let's ask the question posed above.

Was this foreign object something that was intended to remain inside of him?

In this case, the answer is yes. The surgeon specifically intended this surgical stitch to remain inside the patient in order to prevent the testicle from twisting upon itself.

In that case, how much time would he have in which to bring a lawsuit against the surgeon who caused this problem?

Since this was something that was intended to remain inside of him, he would have only until the time he turned the age of majority. That meant that the time limit for him to bring a lawsuit seeking compensation for the harms and injuries he suffered because of this careless surgeon was long gone.

There was absolutely no way for this man to bring a lawsuit decades later when he finally realized what happened to him as a child.

Let's look at another example, a more obvious one.

Surgeon Leaves Surgical Clamp in Abdomen

Let's say during the course of abdominal surgery a surgeon leaves in a surgical clamp in the patient's abdomen. Despite the best efforts by the nurses and hospital staff, they neglect to account for this missing surgical clamp and don't even realize it is missing.

Three years later, the patient develops severe abdominal pain and is taken to the emergency room. X-rays are obtained and doctors are called over frantically to look at this unusual finding.

Lo and behold there is a surgical clamp sitting in the middle of your abdomen, visible on x-ray. You are immediately scheduled for surgery to have this surgical instrument removed.

Let's again ask the question I posed above.

With this foreign object something that was intended to remain inside of you?

The answer in this case is no.

A surgical clamp should never remain inside your abdomen. This was used to clamp off a bleeding blood vessel during your original surgery.

In this case, you would have one year from the date of discovering this foreign object within which to file a lawsuit against the careless doctor and the hospital staff.

There is also something else you should be aware of.

As of today, June 3, 2014, the law says that the time for you to bring a lawsuit in this situation is one year from the date of discovery, or within one year from when you reasonably should have been expected to learn of this foreign object.

That last phrase can throw a huge monkey wrench into answering the question about whether your matter is actually timely.

Let me give you another example.

Doctor Says Get An X-Ray Now. You Decide to Wait.

Let's say that you're having significant abdominal pain and went to your doctor for evaluation. The doctor decides that you need to have various diagnostic tests including x-rays and a CAT scan to see what's going on inside of you. You decide that things aren't so bad and you don't really need those diagnostic tests. You are going to try and live with the discomfort and pain especially since you fear the worst about what they might find.

You also worry about the radiation hazards with additional diagnostic testing, especially if you don't really need it.

Despite the doctor's best efforts to evaluate your condition, you push off this decision for more than a year. Finally, you can take it no longer and the pain becomes unbearable. It's now a year and a half since you were last at the doctor. Finally, you go for those tests. Lo and behold, the x-rays revealed a surgical clamp that was left inside of you. You need to undergo surgery to have it removed.

You are naturally furious and upset at the original surgeon who left in the instrument.

In this case, is the matter timely?

There could be a very good defense argument raised here that you reasonably should have been expected to identify this foreign object within a year after making complaints to your doctor.

It is likely that if you had followed through with her doctor's recommendations to get x-rays done, then the surgical instrument would have been identified and removed much earlier. In that instance, there would likely be a heated legal battle about whether or not you had used reasonable effort to identify this problem within a year after your initial complaints. There is a real possibility that a court might find that your efforts were not reasonable and therefore your matter would no longer be timely. Such results would obviously be devastating.

How Many of These Cases Are Actually Reported?

The folks at Web MD openly state that surgical tools get left behind way too often.  Wed MD experts say, “There have been more than 770 reports of retained foreign objects in surgical patients over the last seven years. These cases resulted in 16 deaths and in almost 95 percent of the cases patients had to have their hospital stay extended. The objects most often left inside patients include sponges and towels, broken parts of instruments, and stapler parts and needles or other sharp pieces.”

In every hospital in New York, whenever surgery is performed the nurses have a strict obligation to make sure a surgical instrument count is correct both at the beginning of the procedure and at the end of the procedure. There are also devices in use among some hospitals that use radio frequencies to detect whether an tagged instrument, or a lap pad or even a sponge has been left inside the patient. That can happen by simply using a radio frequency receiver and wand it over the patient's belly or surgical site.

Dr. McKee, executive vice president of the Joint Commission on Hospital Accreditidation told WebMD, “It is critical for organizations to develop and comply with policies and procedures to make sure all surgical items are identified and accounted for as well as to ensure there is open communication by all members of the surgical team about any concern.”

How many cases are there? What is the average pay out?

Web MD offers a few statistics about this issue, “McKee noted that the 770 cases reported is probably only the tip of the iceberg and the actual number of these incidents may be closer to 1,500 to 2,000 each year. These mistakes can also lead to financial outlay: According to the commission, leaving objects inside patients cost as much as $200,000 in medical liability payments for each case.”

The Joint Commission said a lot of problems arise from the fact that hospital staff members who are not of a high position fear losing their job or being reprimanded if they say that something might have been left behind in the patient. “Problems with hierarchy and intimidation in the surgical team, failure in communication with physicians, failure of staff to communicate relevant patient information and inadequate or incomplete staff education are a part of the problem. If any discrepancy is found between the objects counted and those remaining after the surgery, action must be taken and placed into the record,” according to The Commission. 

Watch the video below to learn more...

 

 

 

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer