Yes, if a healthcare professional accidentally leaves a foreign object inside of you after surgery or another procedure, you can sue for medical malpractice. Sometimes a physician will intentionally leave something inside of you, like an implant or a pacemaker. However, when the surgeon mistakenly leaves things that are not supposed to stay inside of you, like gauze or a surgical sponge, it can be medical malpractice.
The National Quality Forum, a non-profit organization that tracks medical errors, created a list of “Never Events,” which include scenarios of “particularly shocking medical error” on the part of the physician. Five surgical events are on the 2016 updated list, including the “unintended retention of a foreign object in a patient after surgery or other procedure.” Experts estimate that more than 4,000 surgical “never events” happen every year in the United States. More than 70% of the reported “never events” are fatal to the patient.
What We Have to Prove in a Medical Malpractice Case
A successful medical malpractice claim in Georgia must meet a higher burden than a simple negligence case by proving all of the standard elements of negligence—a duty of care, breach of the duty of care, causation, and measurable damages—plus, an added factor. We have to show the judge that a typical, prudent physician would not have made the mistake that the doctor who harmed you did. This is the threshold you must meet to sue for medical practice for a retained foreign object.
Here is how the courts evaluate medical malpractice in Georgia:
- The defendant must have owed you a duty of care. A doctor owes a duty of care to all of her patients. The physician must exercise the same level of care and competence that other doctors would in similar circumstances.
- The actions of the doctor failed to live up to the applicable standard. A surgeon who accidentally leaves a foreign object inside of a patient committed a “never event” and a “particularly shocking medical error.” These actions constitute medical negligence. The courts look to qualified medical expert witnesses to explain to the court how and why the actions of the doctor were negligent.
- The medical negligence must be the thing that hurt you. If the surgeon had performed the procedure at the standard or level of competence required by law, you would not have suffered the harm that you experienced.
- You must have experienced quantifiable harm as a result of the medical error in order to sue for medical malpractice for a retained foreign object. Let’s say that the surgeon inadvertently left a surgical sponge inside of you after abdominal surgery. You developed a raging infection and had to be in the intensive care unit (ICU). This scenario satisfies the measurable harm requirement.
Here is an example of a medical error that is not medical malpractice:
Your doctor accidentally left a surgical sponge inside of you after an operation on your abdomen. While you were still in the operating room, the surgical nurse noticed that the sponge count was not the same after the surgery as before. The surgeon reopened the sutures, found and removed the sponge.
You suffered no adverse effects and did not know about the incident until one of the operating room staff members mentioned it to you later. There was no quantifiable harm, even though there was a brief medical error. The law does not hold healthcare professionals to the standard of perfection. Without measurable harm, there is no malpractice case.
These cases can be complicated and highly technical. You should work with an experienced medical malpractice lawyer to protect your right to compensation when you sue for medical malpractice for a retained foreign object.
Damages for Surgical Errors
We cannot say how much compensation you might qualify for without first talking with you and investigating your medical malpractice claim.
Usually, you cannot recover the cost of the original procedure, the one in which the doctor committed a medical error. You already needed that operation. We will have to separate the expenses, lost time from work, and pain and suffering of the original procedure from the amount that the medical negligence increased these things.
For example, you would have likely missed one week of work to recuperate from the surgery if it had been performed correctly. As a result of complications from the retained foreign object, you missed two months from work. Your lost income for the malpractice claim will be for the two months minus the first week.
Medical professionals have teams of people working hard to defeat your claim for compensation when you sue for medical malpractice for a retained foreign object. You should talk with a medical malpractice lawyer right away to preserve your right to financial damages. Also, the time limitation for taking action to go after your losses is brief. If you miss the deadline, the law can bar you from ever getting compensation. Call S. Burke Law today at (404) 842-7838 for a free consultation.