Grave health consequences are very likely to occur as a result of surgical tools left inside a person’s body. Reported injuries are sepsis and even death. In less severe consequences, people may experience pain, discomfort, and bloating. The bottom line is that these blunders are inexcusable. Doctors are supposed to follow basic common sense and protocols to prevent harm to patients.
The attorneys at Bennett and Heyman have an established team of medical malpractice lawyers with an unwavering commitment to hold doctors accountable for their mistakes. There is no valid excuse for failing to abide by their important duty under the Hippocratic Oath to not harm. Our legal team is known for seeking financial compensation for the monetary and emotional losses as a result of medical mistakes. Call us at 410-429-7856 for a free and private consultation.
Procedures Most Likely to Result in a Surgical Instrument Being Left Inside a Patient
The idea that a surgeon can forget a clip, needle, swab, or other foreign objects inside the body is scary and troubling. Most people learn about this object when ailments arise—often months or years after the surgical tools were left inside and possibly after systemic damage occurs. This medical error is considered a “never event.” The term “never event” is used to identify situations that are generally preventable if safety measures are employed. A 2016 peer-reviewed study by physicians at the Johns Hopkins University of Medicine estimated that at least 5,000 people die every week in the U.S. due to “never events.”
Generally, surgical instruments must be counted or checked at the start and completion of a procedure. However, there are medical procedures where counting is not required routinely. For example, some operations don’t call for the use of specific instruments, but the need arises during the surgery. Some interventions are for the placement of an object that can be expected to remain or removed in the future. There are also some instances when an unforeseen issue arises during the surgery, making retrieval impossible or riskier than retention of a foreign object. For example, if screw fragments crack during a procedure, retrieving creates risks of more significant damage than leaving them inside.
Measures to Prevent Injuries of Retained Surgical Items
There are multiple ways implement measures to prevent retained surgical items. The main and most obvious one is to pay attention. However, it’s not that simple when it comes to surgeries because procedures can vary. For this reason, there are various protocols in place, including:
- Patient Safety Alert – WHO surgical safety checklist (2009)
- Safer Practice Notice – Reducing the risk of retained throat packs after surgery (2009)
- Patient Safety Alert – Reducing the risk of retained swabs after a vaginal birth and perineal suturing (2010)
- National safety standards for invasive procedures (NatSSIPs) (2015)
- Patient Safety Alert – Supporting the introduction of federal safety standards for invasive procedures (2015)
In addition to protocols, there is technology available to assist the process of collecting surgical items before and after surgery. These include:
- Bar-coded sponges and instruments help do the counting. Scanning at the beginning and end of a surgical procedure provides a backup record of the care and precautions taken during the operation. If a discrepancy in numbers arises, the medical team can be aware early on that there may be a problem.
- An electronic radiology order system is helpful for hospitals to call for help to locate retained objects quickly. X-rays depict the retained items. The injury is likely to be prevented if this can be done before the patient leaves the operating room.
Suing for Medical Malpractice After Surgical Tools Left Behind
Under Maryland’s Health Care Malpractice Claims Act, CJP § 3-2A-01 et. seq., there are two prerequisites needed for a medical malpractice lawsuit:
1) The certificates of merit by qualified experts–for both sides– are intended to ensure that the claim is not frivolous. This initial certification sets the basis on the standard of care expected of physicians.
2) The Notice of Waiver of Arbitration is intended to bypass the arbitration panel forum requirement of Maryland.
A legal action for foreign objects typically calls for the application of a longstanding legal doctrine known as “res ipsa loquitor,” which means “the thing speaks for itself.” This negligence doctrine is applied in Maryland when three elements are present. First, the injury would not ordinarily occur in the absence of negligence. Second, the harm must be caused by an instrument or object within the defendant’s exclusive control. And third, no other action or intervening force or factor caused the injury.
While the term “the thing speaks for itself” creates the appearance that a lawsuit for a surgical instrument left inside will be straightforward, this not always the case. The three elements required in Maryland can be difficult to establish since the legal definitions of “absence of negligence,” “exclusive control,” and “intervening force” can be fairly involved in the context of medical malpractice. Also, Maryland courts require a showing of negligence “with particularity.” “Particularity” means that you must relay the whole story as to events demonstrating the mistakes and if they were avoidable.
Not all cases of foreign objects necessarily involve forgotten instruments left in the person after surgery. Moreover, even in those cases, if there is another cause directly linked to the injuries, then the outcome of the lawsuit will hinge upon the lawyer’s skillfulness to show a robust link between injuries and the failure to meet the duty of care– following the protocols and safety measures—as indicated within the medical profession.
Our Baltimore, MD Medical Malpractice Attorneys Handle Surgical Tool Injuries
Bennett and Heyman, P.A., is a Baltimore, Maryland law firm with attorneys experienced in complicated medical malpractice cases. Our attorneys will fight for your rights and hold healthcare professionals responsible for careless acts that are certain to have long-term detrimental health effects. Don’t wait until it is too late. Call us for a free and private consultation at 410-429-7856.
