Managing Partner
Patients trust their doctors to correctly and safely operate on them. But there are cases in which surgeons leave sponges, instruments, and other items inside their patients. If this happens to you or a loved one, there may be serious medical consequences.
Fortunately, there is the option of filing a malpractice lawsuit. This may allow you to recover compensation for the medical bills and other losses you experience. The Long Island medical malpractice lawyers of Dell & Dean, PLLC explain what you need to know.
How Sponges and Instruments Left Inside a Patient Can Cause Injury
Items left inside a patient’s cavity or other parts of the body after surgery are known as Retained Surgical Items or RSIs. RSIs are not to be taken lightly because they can cause serious and potentially life-threatening complications, such as:
- Infection and sepsis: A sponge or other instrument left inside the patient can cause an infection that leads to abscess. This may trigger a dangerous and deadly response known as sepsis.
- Bowel and organ perforation: If the item left inside the patient is sharp or it breaks into sharp pieces, it can perforate the bowels or vital organs.
- Tissue damage: The foreign object can trigger an inflammatory response that affects tissues. A mass, adhesion, or other complication may result.
- Obstruction: Sponges in particular can obstruct the bowels. Swelling and inflammation may disrupt normal bowel movements.
- Fistula: A fistula is an abnormal connection between organs or tissues. It can result from sponges that are left in the body following an operation.
- Chronic pain: Because these items may not be discovered for weeks or even months, the patient can suffer ongoing inflammation, infection, and chronic pain.
- Death: Sepsis and organ perforation in particular can, in some cases, be fatal.
Warning Signs of an RSI
If you or a loved one recently had surgery, it’s important that you make note of any problems you experience and communicate them to your doctor. These are some possible symptoms that a sponge or other surgical instrument has been retained (left inside) you:
- Persistent or worsening pain, particularly in the abdomen
- Abdominal swelling or tenderness
- Nausea
- Vomiting
- Fever
- Chills
- Persistent drainage from the incision
- Unusual or unexplained bleeding
- Delayed wound healing
- Problems with bowel movements, like constipation
- Unexplained mass or lump near the surgical site
- Sepsis symptoms like fever, rapid heart rate, confusion, and extreme weakness
Who Is Responsible for RSIs?
If you have a Retained Surgical Item, it’s important that you get treatment and then talk to a Long Island surgical error attorney. You may have a medical malpractice claim that could allow you to recover monetary damages.
You should understand that a mistake is not itself proof of malpractice. Rather, the mistake must be unreasonable in light of the circumstances. Or, described another way, the medical professional or facility must have departed from accepted standards of medical care.
Medical malpractice is therefore about negligence, not perfection. If you have a malpractice claim, one of the first steps will be to identify the responsible medical providers. These may include:
- Surgeon: If the surgeon’s conduct departed from accepted medical standards and caused the injury, they could be liable. Under the circumstances, the surgeon’s conduct must have been unreasonable.
- Nurses and operating room personnel: Nurses and OR staff may be liable if they failed to properly count sponges and other surgical instruments to make sure nothing was retained.
- Hospital: New York courts have specifically imposed liability on hospitals in retained sponge cases, if the hospital’s employees were acting within the scope of employment.
- Other entities and providers: These other parties may share some liability if their employees or agents were involved with the surgery but negligently failed to follow safety protocols.
In some retained surgical item lawsuits, New York’s res ipsa loquitur doctrine may allow a jury to infer negligence from the fact that the item was left inside the patient. Res ipsa loquitur is Latin for “the thing speaks for itself.” Certain requirements must be met to permit this inference.
Evidence That May Support Your Long Island Medical Malpractice Claim
If an RSI has caused injury, you will need evidence to support a medical malpractice claim. This evidence will relate to the negligence itself and the medical, financial, and personal losses you’ve sustained. It may include:
- Medical records: These include both the records concerning the original surgical procedure and the treatments that the victim needed to address the complications. Bills, doctor and nursing notes, operative reports, discharge records, and other documents are in view.
- Instrument counts: Operating rooms make notes of the numbers of sponges and other surgical instruments both before and after a procedure. These records may indicate miscounts and errors.
- Imaging: MRIs and other imaging could show that the sponge or instrument was left inside the patient. This is an important piece of evidence in your malpractice case.
- The item itself: Once the item is actually removed from your body, this evidence needs to be retained. Talk to the physician who is treating you for the RSI about preservation.
- Hospital policies and procedures: Hospitals maintain policies and procedures concerning surgeries and instrument counts. Evidence that your doctor or hospital departed from these could strengthen your malpractice claim.
- Work records: If you lose time from work due to the RSI, or you are unable to work at your full capacity due to your injuries, you should document the work you miss and decreased productivity.
- Expert witness reports: Expert witnesses may be required in a New York medical malpractice case. More generally, experts testify about such matters as the applicable standard of care, whether the medical professional or entity departed from it, and the harm it caused to the patient.
Act Now to Protect Your Legal Rights
Medical malpractice victims do not have an unlimited amount of time to take action. The general statute of limitations (deadline to file) is two years and six months from the negligent act or omission or the last treatment where there is continuous treatment for the same illness, injury, or condition.
But if the malpractice claim is based on discovering a foreign object that was retained within the patient, the deadline is typically one year from the date the item was discovered or the date of discovery of facts that would reasonably lead to such discovery, whichever is earlier.
However, there are other situations that could alter the relevant statute of limitations. This is especially so with lawsuits that are filed against government-owned hospitals and other healthcare entities. If you file too late, the judge may dismiss your case.
For these and other reasons, you should not unnecessarily delay speaking with an attorney. Reach out to Dell & Dean. We can review the circumstances of the malpractice in your case and help you make a case for monetary damages. Schedule your free case consultation today.
