Can I file a lawsuit for a surgical instrument left in the body?

Posted by Hopkins Law Firm | Jul 19, 2022 | 0 Comments

Have you had surgery – only to have a surgical instrument left in the body? You're not alone. CBS News reports that it happens to hundreds of people each year, while CNN estimates that it happens to as many as 6,000 patients per year.

Most victims have longer hospital stays due to significant complications that may occur, including damage to bodily organs and even death. The gruesome discoveries are made after complaints of pain and infection as well as during routine radiological examination (National Institutes of Health).

A surgical instrument should never be left unintentionally in the body. The cause is human error. It is entirely preventable.

Can I file a lawsuit for a surgical instrument left in the body?

When a surgical instrument is left in the body, you can file a lawsuit.

What surgical instruments may be left in the body?

Surgical instruments that may be left in the body include:

  • Sponges
  • Towels
  • Clamps
  • Scissors
  • Electrosurgical adapters
  • Needles
  • Blades
  • Pins
  • Scalpels
  • Drain tips
  • Forceps
  • Masks and gloves
  • Tubes
  • Medical devices

What kind of lawsuit is a surgical instrument left in the body?

A lawsuit for a surgical instrument left in the body is a personal injury medical malpractice claim. The victim is the one who initiates the case. They are seeking a finding of legal responsibility and financial compensation because of the defendant's actions. It is not a criminal case. The purpose of the claim is to compensate the victim for the harm they have sustained.

How long do you have to sue for surgical instruments left in the body in South Carolina?

South Carolina Code § 15-3-545(B) creates a two-year time limit for medical malpractice claims involving surgical instruments left in the body. The victim has two years from when they know or should have known about the injury to start their lawsuit. In addition, the victim has no less than three years from the time the instrument is left in the body.

The two-year time limit created by 15-3-545(B) applies when the object is left in the body:

  • Inadvertently
  • Accidentally
  • Unintentionally
  • Negligently

See Jenkins v. Meares, 302 S.C. 142 (1990).

Is leaving a surgical instrument in the body medical malpractice?

Leaving a surgical instrument in the body is strong evidence of medical malpractice. South Carolina law § 15-79-110(6) defines medical malpractice as doing what a reasonably prudent health care provider would not do. Of course, a reasonably prudent health care provider would not leave a surgical instrument in the body. Absent exceptional circumstances, leaving a surgical instrument in the body is medical malpractice.

Why bring a lawsuit for a surgical instrument left in the body?

When a surgical instrument is left in the body, filing a lawsuit may accomplish several objectives:

  • Medical Bills and Other Compensation – When a surgical instrument is left in the body, you almost certainly have significant financial losses. You are going to need additional medical care to remove the foreign object. There may be medical complications that caused you to seek a medical evaluation to begin with. You may be unable to work because of your injuries.

 

You shouldn't have to suffer these financial losses. A lawsuit for a surgical instrument left in the body should compensate you for the expenses and losses associated with what happened to you.

  • Pain and Suffering – A lawsuit for a surgical instrument left in the body may include compensation for pain and suffering. After all, you are likely going to have another surgery, and that involves pain and recovery time. South Carolina law allows for pain and suffering compensation as part of a medical malpractice claim. There are damage caps that apply to non-economic damages claims.
  • Mental Anguish – Many people overlook the mental anguish that accompanies having a surgical instrument left in the body. It is mentally distressing, especially because it is preventable. You may suffer from depression and anxiety. These are actual damages and worthy of compensation.
  • Accountability for the Wrongdoer – A lawsuit holds the defendant accountable for their actions and allowing the instrument to be left in the body. The person or healthcare provider must answer for their actions in a public forum.
  • Preventing Other Occurrences – Bringing a formal claim may lead to changes to prevent the same thing from happening again.
  • Awareness for Other Victims – Even though the primary purpose for bringing a lawsuit is justice for the victim, it can also bring awareness to the issue and help others.

How do I bring a lawsuit for a surgical instrument left in the body in South Carolina?

To bring a lawsuit for a surgical instrument left in the body, you follow the steps to file a medical malpractice action. South Carolina law § 15-79-125 requires the plaintiff to file a Notice of Intent to File Suit. The notice requires the affidavit of an expert witness. It summarizes the facts.

The statute of limitations (the time limit to file the claim) stops after you file your notice. You serve the paperwork on all defendants listed in the notice. The parties have a period of time to subpoena medical records and related documents.

Next, the parties have 90-120 days to participate in mediation. They have 60 days from an unsuccessful mediation proceeding or until the expiration of the statute of limitations to file their claim, whichever is later. The plaintiff may file their formal legal action only after this is complete and the matter is not resolved.

Once you file your formal legal claim, you proceed through litigation. The claim may go to trial. Even after filing, the parties may agree to resolve the claim by agreement. There may be additional alternative dispute resolution after you begin the civil action.

Lawyers for Lawsuits for Surgical Instruments Left in the Body

If you are the victim of a surgical instrument left in the body, our medical malpractice lawyers can work on your behalf to assert your legal rights and claim monetary compensation. You are the victim of serious wrongdoing.

Let our lawyers help you access the compensation you deserve and hold those responsible accountable. We will fight for you. Contact us today.

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