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What you don’t know could be hurting you…

Posted by Scott M. Peterson | Jun 30, 2015 | 0 Comments

Surgical items left in patients, or “foreign object” cases, happen more frequently than you would imagine in New York. This is almost always negligence

Surgery is common.  It happens thousands of times per day at hospitals across the country.  Most of these surgeries are successful, some are not.  Most people leave surgery, go through a recovery period, and go on with their lives.  Some people, unfortunately, develop pain or other complications post-surgery that just don't feel right.

What's Lurking Below the Surface Could Cause Problems

During most surgical procedures there are a number of items used to assist with the procedure.  These include clamps, braces, clasps and sponges, among others.  For some of these items, such as sponges for example, so many are used during the surgery that an individual – typically a hospital employee – is tasked with keeping a “count” of the number that go in and the number that go out.

Unfortunately, on occasion, sponges, clasps or clamps get left behind following surgery, and the patient – who is typically unconscious during the procedure – has no idea.  The patient is closed up, everyone leaves the room, and the patient is moved to rehab.

Sometimes the error is recognized early, and the patient is brought in for a follow up surgery to remove the “foreign object.”  In these cases the patient has the right to pursue a lawsuit as a result of the device having been left, and the need to undergo subsequent surgery.  The general medical negligence statute of limitations, of 2 1/2 years, would typically apply.

In other cases however the patient, unaware of the foreign object, often goes about her life for a number of years.  In these cases we typically see some sort of chronic, undiagnosed pelvic or other type of pain.  The patient may have even sought treatment for the pain or discomfort, to no avail.  The patient often only learns of the foreign object when, during some unrelated surgery, her physician discovers the object.

The “Discovery Rule” may save a “foreign object” lawsuit

In this medical negligence case, the 2 1/2 year statute of limitations from the date of surgery has long since expired.  Nonetheless, sometimes courts will allow a victim in a foreign object lawsuit to assert that a longer statute of limitations should apply – one that runs not from the date of the original surgery, but instead from the date when the foreign object was “discovered” inside the patient.  The theory behind what is known as the “discovery rule” is that since the victim would have had no reason to believe that something went wrong during surgery, she should not be penalized for not having filed a lawsuit within 2 1/2 years.  This “discovery rule” can, therefore, save a foreign object lawsuit.

The Patient Must Be Her Own Advocate

While these situations may be somewhat rare, they can be very serious.  Foreign objects can lead to infections, severe pain or other problems, so it is vital that if you feel that something is not right post-surgery, you follow up as necessary with your provider.  If they are ignoring your concerns, find someone else who doesn't.  As we often say, a patient must be her own advocate, always.

If you have any questions about a medical misdiagnosis or retained surgical item give us a call 518-308-8339.  We're happy to help.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.


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