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Surgeon leaves instrument inside of you. You only learn about it years later. Are you still able to bring a lawsuit in New York for surgical negligence?

You needed to have surgery.

After surgery, the surgeon told you that everything went great. You have no reason to believe otherwise.

Three years later you begin to have some severe back pain and you go to orthopedist. The orthopedist, when performing tests, realizes that there's something unusual visible on x-ray that should not be there. Further discussion with other orthopedists in the office confirm what looks to be like a surgical clamp inside of you. The consensus is that you will require surgery to remove this item.

You are furious.

The surgeon saves the instrument for you. It was a surgical clamp used in the surgery you had three years ago. Had it not been for the original surgeon's carelessness or hospital staff's carelessness, you never would've had the significant pain that prompted you to go to the orthopedist. The only way for the orthopedist to evaluate your ongoing pain was to do a comprehensive and complete workup including multiple physical examinations, as well as diagnostic imaging tests including x-rays and CAT scans.

Because of what they found, you are now required to undergo surgery to remove this instrument that never should have been left inside of you.

As of today, May 26, 2014, how much time do you have within which to bring a lawsuit for medical negligence, also known as medical malpractice against the original surgeon?

This would be considered to be a “foreign object” case.

What that means is that this is an instrument that never should have been left inside of you.

The most common question I get with these types of retained items left in the surgical field is “How much time do I now have to file a lawsuit for medical carelessness against the original surgeon?”

To answer that question, I need to ask a question.

The question is critical.

Is the item that was left inside of you something that was intended to remain inside of you as part of your surgery or is this something that never should have been left inside of you?

The answer is extremely important.

That will determine how much time you have to file a lawsuit against the surgeon and/or the hospital.

WAS THIS ITEM NEVER TO REMAIN INSIDE OF YOU?

In New York, as of the date of this article being written, May 26, 2014, you have only one year from the date of discovering this item that was left inside of you within which to file a lawsuit. So if this is something that never should have been left inside of you, you have only one year from the date you discover it in which to file suit.

There is a slight exception to this rule. The exception is that you have only one year from when you reasonably should have been expected to discover it.

What that really means is that if you suspect you have some problem and you neglect going to a doctor or following through on a doctor's instructions on what to do to fully evaluate your problem, then the defense can raise an argument that had you reasonably followed through with going to the doctor and following the doctor's instructions, you would certainly have identified the object that was left inside of you earlier rather than later.

YOU CANNOT RELY ON THIS ARTICLE!

You cannot rely solely on the one-year data discovery rule. Especially when there may be instances where you might otherwise have been recommended to have medical evaluations that would've led to diagnosing this problem earlier.

The other reason why you cannot rely solely on the information contained within this article, or anything you read or hear online, is because the laws change frequently.

That means that the time limit within which you have to file a lawsuit may have changed by the time you're reading this. The only true way for you to know whether your matter is timely is to pick up the phone and call.

WHAT IF ITEM WAS INTENTED TO REMAIN INSIDE OF YOU?

Now, let's get back to what happens if the item that was left inside of you was intended to remain inside of you.

In that instance, you would have only 2 1/2 years from the date of any wrongdoing within which to file suit.

LET ME GIVE YOU A GREAT EXAMPLE

He was scheduled for a hernia repair. He undergoes the surgery and following his surgery is told by the surgeon that everything went great.

There were two problems with that. One is that the doctor failed to tell the patient what happened at the end of the surgery.

Second is that the patient never realized what happened at the end of the surgery until three years later.

Let me be clear.

Three years after the patient's hernia surgery he developed significant back pain. He couldn't understand why he was having back pain. He didn't hurt himself. He didn't get into an accident. He didn't do something strenuous that caused him to pull a muscle.

He went to an orthopedist who then proceeded to do a complete workup. This included getting x-rays and a cat scan. The doctor called the patient in and showed him some type of sharp foreign object on the x-ray. He said “This appears to be exactly what is causing your back pain. It looks like a needle tip. Have you had surgery recently?”

The patient responded that he had hernia repair surgery three years earlier.

“Well, whatever it was we now have to go in and get it removed.”

Looking at the original question that I asked above, is this needle tip something that was intended to remain inside this patient, or is this something that never should have been left inside this patient?

In this instance what happened is that as the surgeon was closing the patient after the surgery, the needle tip broke off of the needle. The surgeon attempted to look for it but could not find it. He neglected to have x-rays taken during the surgery to identify exactly where this needle tip was. He figured that it would get lodged somewhere insignificant and it would never give the patient cause for concern.

The doctor was wrong on two fronts.

The first is that not only did become lodged in the incision site, but over a period of years it actually migrated. As a result of migration to an adjacent area, it began to cause significant pain.

The other problem was that the doctor never informed the patient about this needle tip, since he believed it would never affect the patient.

HOW MUCH TIME DID PATIENT HAVE TO FILE SUIT?

Knowing the answer to the question, we now look back and ask how much time this patient has within which to file a lawsuit against the surgeon for medical negligence?

In this specific instance, since the needle tip was never designed to remain inside the patient during the course of surgery, the patient would have only one year from the date of discovering the needle tip or one year from when he reasonably should have recognized that there was this foreign object inside of him.

That's how he was able to start a lawsuit against the surgeon after the ordinary time to file a medical malpractice lawsuit in NY had lapsed.

CONCLUSION

Remember, the only way for an experienced medical malpractice trial attorney to know whether your matter is timely is if he asks you (1) what the object was that was left inside of you and (2) was this something that was intended to remain inside of you as part of your surgery?

Or, was it something that never should have been left inside of you?

The answer to that critical question will determine how much time you have to bring a lawsuit in the state of New York for medical malpractice.

REMINDER...

Again, I cannot tell you how important it is that you cannot rely on the time frames contained within this article or in any video you watch online. The information in this article is valid only as of today, May 26, 2014.

As I stated above, the laws change and you cannot and should not be relying on this article to definitively determine for you how much time you have to file a lawsuit.

The only way to know for sure whether this time limit is still valid is to pick up the phone and call. You know I answer questions like yours every single day and I encourage you, if you have legal questions, to pick up the phone and call. You can reach me at 516-487-8207.


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer