Everyone has heard stories about surgeons leaving instruments in patients’ bodies. It seems obvious, even to the courts, that it is negligent to leave something in the body after it has served its purpose. Objects introduced into the patient's body to serve a temporary medical function for duration of surgery, but intended to be removed after procedure's completion, qualify as “foreign objects” if left behind. But items placed in the patient with the intention that they will remain to serve some continuing treatment purpose are “fixation devices” (see Rockefeller v. Moront, 81 N.Y.2d 560, 618 N.E.2d 119 (1993).
The initial legal battle in cases where a foreign object was wrongfully left in a patient's body involves a statute of limitation, where the surgeon argues that the lawsuit was simply brought too late. Here, the distinction between foreign objects and fixation devices is important for purposes of proof, as well as for statute of limitations purposes. If a foreign object is left in the body, its mere presence usually entitles the victim to a finding of negligence. In addition, under New York law, the statute of limitations which may otherwise have run, is extended for a year after a foreign object is discovered by the patient. Failure of a fixation device, whether an artificial hip or something as simple as a suture does not prove negligence in itself, and does not extend the statute of limitations.
Foreign object cases are not necessarily easy to prove, or win. Sometimes, it's difficult to prove what the object really was, where it came from, or how it got into the body. Some examples:
Multiple Operations: A patient who has had a number of operations and, later, discovers a foreign object may have difficulty proving in which operation the object was left there.
Lost Needle: In the case of a lost needle, it may be difficult to prove if the needle was used for an injection, suturing or acupuncture.
Who Done It?: In one famous case, Kambat v. St. Francis Hospital, 89 N.Y.2d 489, 678 N.E.2d 456 (1997), a patient complained of abdominal pain after a hysterectomy, and a large surgical pad was discovered in her abdomen during a re-operation. The patient died of infection caused by the pad. It was unclear whether the pad was discovered inside or outside the bowel in the re-operation. Her family argued that it was a foreign object left there during surgery, and was partway into the bowel because the infection had caused the bowel wall to break down next to the pad. The defense argued that the pad was found entirely inside the bowel, so she must have swallowed it. The case was tried, lost by the plaintiff, appealed, sent back for a new trial and lost again. The moral of the story, if there is one, is that there is no such thing as an open and shut medical malpractice case.
McCarthy Fingar's Medical Malpractice & Personal Injury group has experience in foreign object cases. Please contact Joseph J. Brophy by email (jbrophy@mccarthyfingar.com) or by phone (914-385-1021) with any question you may have.
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