Retained Foreign Objects

Leaving a foreign object in a patient’s body during surgery is considered a “never event,” which refers to egregious errors that can never be justified in a medical environment. While reported incidents of retained foreign objects during surgical procedures are quite high, the actual numbers may be even greater. In a 2012 study, Johns Hopkins estimated that a surgeon leaves a towel, sponge or another foreign object within a patient’s body 39 times each week across the country. A retained foreign object can inflict serious injuries or even death on a patient. If a surgeon left a foreign object in your body during surgery, you should consult an experienced Syracuse medical malpractice attorney at DeFrancisco & Falgiatano to review your legal options.

When a surgeon leaves behind a retained foreign object in the body, the presence of the object can pose a risk of infection or abscess formation. Under New York Civil Practice Law and Rules section 214-a, the general statute of limitations for medical malpractice is 2½ years from the date the act of medical malpractice occurred. For foreign objects in the body, the statute of limitation is extended to one year from the date the foreign object was discovered or should reasonably have been discovered. So, if a patient undergoes diagnostic imaging five years after a surgical procedure and discovers that the prior surgeon had left a retained object in his body, the patient has a year to commence an action for medical malpractice even though the standard statute of limitations had already expired. A foreign object is an object, like a clamp or sponge, that was inadvertently abandoned within the patient. It does not include objects that were intentionally placed like pacemakers, stents, or plates, rods or screws that serve to stabilize a fracture.

To recover damages in a case involving a retained foreign object, you will need to establish by a preponderance of the evidence: (1) the defendant owed you a professional duty of care, (2) deviation from the professional duty of care, (3) causation, and (4) damages. The professional duty of care is judged according to what healthcare providers in the same specialty and geographic region would have done under the same or similar circumstances. A medical malpractice lawyer will look at the safety protocols used by competent surgeons in or around Syracuse in assessing the facts of your case.

To sue your doctor for medical malpractice, you will need to consult an expert, who should be a surgeon in the same specialty as the defendant. Along with the complaint, the plaintiff’s attorneys will need to file a certificate of merit that states that they have consulted with an expert familiar with the facts of your case and believe on the basis of the consultation that reasonable grounds exist for bringing suit.

Damages from retained foreign objects can involve economic or noneconomic losses. Economic losses may include out-of-pocket expenses, replacement services, medical bills (including the cost of subsequent surgeries to remove the foreign object and make any repairs), and lost income. Noneconomic losses may include pain and suffering, mental anguish, loss of consortium and loss of activity.

In some instances, the damage caused by a retained foreign object is so great that a patient cannot be saved and passes away as a result. In that case, family members may be able to sue for wrongful death. In New York, wrongful death damages include pecuniary losses such as funeral and burial expenses and loss of services. You cannot recover for your own pain and suffering as the result of a loved one’s death. However, if a patient suffered prior to death because of the retained foreign object, it may be possible to recover damages for the patient’s own pain and suffering.

If you were harmed due to a retained foreign object, you should talk to an experienced trial attorney as soon as possible. At DeFrancisco & Falgiatano, we represent surgical patients, along with their families, who have been harmed by medical malpractice. We serve clients in Syracuse, Rochester, and other places in Upstate New York, including in Auburn, Canandaigua, Lyons, Oswego, Watertown, Elmira, Herkimer, Ithaca, Lowville, Utica, Wampsville, Binghamton, Oneida, and Cooperstown. Please contact DeFrancisco & Falgiatano at 833-200-2000 or via our online form.