The thought of surgery leaves most people with the feeling of apprehension. But the thought of the doctor leaving behind surgical equipment can be horrifying, especially when the surgery was a success for the intended procedure. The tool that was left behind could create new and unforeseen medical issues that require further invasive surgery. These additional surgeries can be extremely costly, averaging over $60,000 (while the cost of new sponge-tracking technology tacks on only about $10 to the procedure). The most commonly left items are lamps, sponges, scalpels, needles, towels, catheters, and even scissors. In the United States, there are approximately 4,000 cases of “retained surgical items” that are reported per year. Between 2005 and 2012, at least sixteen deaths resulted from cases of the unintended retention of foreign objects.
Your Legal Rights
In order to maintain a negligence lawsuit for medical malpractice in New York, the plaintiff shoulders the burden of satisfying the essential elements of a prima facie case. The first element is showing that there was a deviation or departure from accepted medical practice, and the second element is showing that such departure was a proximate cause of injury (See Guzzi v. Gewirtz). Conflicting medical opinions can make it difficult for a defendant to prevail on a motion for summary judgment. These varying expert opinions are often subject to credibility issues that are left to the jury to sort out (See Wexelbaum v. Jean).
The Statute of Limitations Problem
Under the New York Civil Practice Law and Rules (CPLR), most garden variety negligence or personal injury lawsuits carry a three-year statute of limitations. However, there is a two-year-and-six-months statute of limitations that applies to actions for medical malpractice. The shorter time frame is beneficial to members of the medical profession and makes it critical to file one’s lawsuit in a timely manner.
Generally, there are two exceptions to this time barrier. The first is known as the Continuous Treatment rule. Under this doctrine, a patient that seeks treatment from the same doctor for the same condition enjoys the benefit of an extended statute of limitations. The cause of action does not accrue until the termination of the doctor’s treatment of that patient. The treatment must be for the same condition throughout the duration of the medical care. The two-year-and-six-months timeframe begins running when treatment ends.
The second exception is known as the Foreign Object rule. Under this doctrine, the plaintiff can choose to sue two-year-and-six-months from the actual date of the surgery or one year from the discovery of the foreign object in the plaintiff’s body, whichever is longer. The plaintiff should not delay in filing suit, however, since the standard is not only actual discovery of the object, but when the object would have been discovered with reasonable diligence.
If you or a loved one believe that you are the victim of medical malpractice, contact an attorney immediately for a free consultation. It is critical to file a claim prior to the running of the statute of limitations. Delaying could foreclose your rights. Many doctors are placed on a pedestal by their patients, and most physicians and hospitals have large insurance policies in place to protect them from mistakes such as those discussed in this article. Contact an attorney for more information.
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