Strange But True: Medical Malpractice Cases from Surgical Tools Left Behind

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    When we think of a “botched surgery,” or medical malpractice, we tend to imagine an error with the procedure itself.  The wrong leg is removed, or the wrong lung is collapsed, and the patient dies as a result.  This dramatic, gruesome nightmare scenario overshadows the more subtle (but equally terrifying) possibility that the surgeon does the job correctly… but then forgets an instrument.  Inside the patient’s body.  Readers with surgical phobias may want to turn back now, because in this entry of our “Strange But True” series, we’ll be taking a look at just how often tired doctors leave stray equipment inside of their patients — and what can happen as a result.

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    1,500 Incidents of Surgical Tools Left in Patients Every Year

    According to the Centers for Disease Control and Prevention (CDC), approximately 51.4 million surgeries take place in the United States every year.  The majority of these procedures are related to arteriography (visualizing the arteries), heart catheterizations, C-sections, and small intestine endoscopies.  Other “popular” procedures include fracture repairs, hysterectomies, hip and knee replacements, and the placements of stents and grafts.

    The majority of these procedures will be completed without incident, and the patients will go home safer and healthier.  But some unlucky patients will go home with something extra.

    According to Dr. Ana McKee, VP and chief medical officer of the Joint Commission, “Leaving a foreign object after surgery is a well-known problem.”

    How well-known?

    Over a seven year period, the Commission alone observed 770 incidents of surgical instruments being left inside of patients.  In other words, the alarming phenomenon of surgical item retention strikes one patient roughly every three days.

    Some of the most common retained items included sponges, towels, surgical instruments, needles, and even parts of staplers.  (Before you assume that sponges and towels “don’t sound too bad,” remember even soft items can cause deadly blockage and/or build up harmful bacteria and cause infection.)

    Among 770 documented cases, 16 resulted in the death of the patient.

    Medical instruments in a steel tray
    Think those numbers sound bad?  Brace yourself: the U.S. Department of Health and estimates you have a 1 in 100 chance of falling victim, and a 2008 study published in the Annals of Surgery reports that a staggering 12.5% of all surgeries end with an incorrect tool count.  In other words, the Commission’s counts — bad as they are — are at the very low end of the scale.

    Some estimates range far higher.  According to Loyola University Health System, the annual incidence rate is roughly 1,500.  Recall that the Joint Commission estimated numbers closer to 110 incidents per year (770 over seven years), with about two deaths per year (16 over seven years).

    In other words, Loyola’s figure is roughly 1o times higher than the Commission’s.  If you also scale up the death count to keep things consistent (if hypothetical), that’s about 20 fatalities per year.

    What could be the cause behind all these discrepancies?

    The probable answer is also the worst.  To quote a statement from the Joint Commission, “Nurses have been discouraged against reporting all errors because of the threat of malpractice and liability issues. Estimates are undoubtedly low.”

    Patient POV of dentist and dental assistant during dental treatm

    Object Retention Claims Our Firm Has Handled

    The Unified Judicial System of Pennsylvania keeps careful records of its medical malpractice cases.  In 2012, there were 1,508 filings throughout the state.  The bulk of the cases (389) came from Philadelphia, with Allegheny as the runner up at 281.

    Our firm regularly handles these matters, and in fact, we’ve even taken on clients dealing with the precise issue of item retention.  In one case, we obtained a medical malpractice ruling of $1,538,803.50 for a woman whose doctors left laparotomy sponge inside of her body after a hysterectomy.  Over time, the sponge created a painful abscess which caused our client months of entirely avoidable, needless suffering.  In the end, she had to be subjected to yet another costly surgery to retrieve the sponge.

    In another instance, we won an $800,000 award for a woman in a similar situation. In this case, the surgeon forgot a 40 x 60 cm towel inside our client’s abdomen following an exploratory laparotomy.

    Medical malpractice cases are notoriously tough to prove, and statistically speaking, plaintiffs tend to be at a disadvantage.  In 2010, for example, there were 1,490 cases filed in Pennsylvania.  Among them, there were only nine verdicts in the $500,001-$1,000,000 range.  There were only five verdicts in the $1,000,001-$5,000,000 range.

    That said, Pennsylvania is one of the “better” places for plaintiffs, ranking second for largest payouts behind New York in Becker’s Hospital Review.  Among all malpractice claims, about one quarter (24%) were related to surgery.

    Surgery Detail

    Was it Medical Malpractice?

    Part of the reason proving medical malpractice is so difficult is that there are multiple legal requirements, all of which must be in place.  To begin with, there must be a formal doctor-patient relationship.  Then, it must be proven that the surgeon did not meet the normal standards of reasonable care accepted in the profession.  Then, it must be proven that the surgeon’s conduct resulted in significant damages.

    In many cases, there exists a challenging grey area between the actions of the doctor and the health of the patient.  For example, imagine a scenario where a terminally ill patient dies under hospital care.  Was it actually their doctor’s fault, or the sad but natural consequences of advancing illness?

    However, leaving an instrument behind in a patient’s body is much less of a grey area. Surgical teams have a duty to take multiple counts of all tools at various points during a procedure to ensure the tool count remains correct and consistent.  If the surgeon is negligent in his or her care, objects may be forgotten and counts may be incorrect.  The object itself may serve as proof of medical negligence or malpractice.

    Some common causes of foreign object retention include:

    • Undertrained staff members.
    • Exhaustion and fatigue caused by long shifts.
    • Poor communication between team members.
    • Failure to monitor the patient’s condition adequately.

    Where legal action is considered, it’s extremely important for plaintiffs to remember the statute of limitations.  In Pennsylvania, you have a time limit of two years (following the incident) to file a malpractice claim.  If the case involves wrongful death, the claim must be filed within two years of the date of death.

    If you or someone you love has been hurt by malpractice, negligence, or surgical errors, you may be entitled to significant compensation for your suffering.  To schedule a free, private case evaluation with an experienced personal injury lawyer, call the law offices of The Reiff Law Firm at (215) 709-6940, or contact us online today.

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