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North Carolina Medical Malpractice: Can a patient sue for unintended retained foreign objects during surgery?


Yes, and unintended retained foreign objects happens more than you think. A sponge, surgical towel, swab, or gauze left in an abdominal cavity. A stint lodged in a urethra. Even drill bits and scissors have been left behind in surgical patients after surgery, and according to one statewide study, there were 128 incidents of unintended retained surgical items (RSIs) between 2014 and 2015. See When your surgeon accidently leaves something inside of you, WASHINGTON POST (Sept. 4, 2014).

What is a “Retained Surgical Item?” When is “after surgery?”

Retained Surgical Items (aka “unintended retained foreign objects” (URFOs)) are items that doctors and hospital personnel negligently leave in their patients after surgery. “After surgery” is any time after completion of the skin closure at the surgical incision, even if the patient is still in the operating room under anesthesia.

Complications and Symptoms caused by Retained Surgical Instruments

The complications, symptoms, and health consequences of this type of medical malpractice are extremely painful and sometimes fatal.  Retained surgical items symptoms include:

  • Severe pain
  • Foreign body granuloma (a mass of tissue, typically produced in response to infection or presence of a foreign substance)
  • Infection
  • Abscesses
  • Cysts
  • Bodily fluid retention
  • Perforation or obstruction of blood vessels
  • Internal bleeding and hemorrhaging
  • Sepsis (blood poisoning)
  • Acute nerve lesions
  • Tumors
  • Formation of gallstones
  • Gastrointestinal injury requiring removal of the intestines
  • Immune system disruption
  • Death

Prevention of RSIs and URFOs: Retained Surgical Instruments are an easily avoidable mistake

Although the incidence of retained surgical items and the risk factors for these types of medical errors is not fully understood, the fact is that these mistakes happen and they happen more often than they should – even in a state such as North Carolina with excellent hospitals.  Clearly, there are obvious measures a hospital can take to prevent leaving six-inch long steel forceps inside of a patient’s body (i.e checking off a checklist of surgical instruments used during surgery before closing the surgical incision with stitches).

However, for various reasons, medical providers do not always implement or follow these common sense, low-cost patient-protection measures. This is negligent medical care. Furthermore, when these surgical accidents occur, patients are not only subjected to significant pain and suffering, they are often left on the hook and asked to pay the medical bills needed to fix somebody else’s mistake. This is unfair.

If a doctor has left a surgical instrument, item, or any other foreign object in you or a loved one, you may be entitled to compensation. Typically, doctors carry professional liability insurance to compensate the victims of their malpractice. However, different types of insurance policies may also provide coverage depending upon the circumstances of your retained surgical instruments lawsuit.

Finally, remember that even if a doctor identifies his or her mistake of leaving a foreign object in a patient before the patient awakens from anesthesia and removes the object, the object should not have been left inside the patient in the first place. In such a situation, a medical malpractice claim may be still be viable if harm has resulted.

Legal Standard for Retained Object Cases

Retained object cases are not treated the same as all other medical malpractice cases in North Carolina. The North Carolina legislature has passed a number of “tort reform” measures which make the filing of a medical malpractice case difficult and costly. Many cases not involving catastrophic injuries simply are not economical to file because of these burdens. However, with retained object cases the legal principle of res ipsa loquitur can be utilized to eliminate some of these burdens. The principle of res ipsa loquitur removes some of the legal hurdles to filing a claim against a negligent physician and hospital.

Filing a Medical Malpractice Suit in North Carolina for Retained Surgical Instruments

Contact the North Carolina medical malpractice attorneys at Maginnis Law for a free consultation on your retained surgical objects case. The Raleigh attorneys of Maginnis Law are experienced in handling complex injury and liability cases such as those involving RSIs and URFOs, and we offer free consultations so that you can see whether our lawyers will be a good fit for your case.  We also handle cases across North Carolina including Triangle area cities (Raleigh, Durham, Chapel Hill, Carrboro), the Triad (Greensboro, High Point, Winston-Salem), Charlotte, and Asheville.

If a surgeon left a foreign object in you or a loved one, contact Shawn Howard, Maginnis Law’s lead North Carolina personal injury attorney.  Shawn is a member of the Multi-Million Dollar Advocates Forum, which is only available to lawyers who have recovered more than $2,000,000.00 in a single case.  He may be able to assist you in recovering compensation. You can call him directly at 919.480.8526 or reach him via the Maginnis Law contact page.

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