One of the most egregious forms of surgical errors is leaving foreign objects inside the patient. Unfortunately, case law reveals that this happens far more often than one might think. However, even if a physician neglects to remove medical devices during surgery, any lawsuit still needs to be litigated in accordance with New York surgical error laws and court procedure. As an example, an appeals court recently overturned a trial court decision in which the plaintiff’s case was dismissed, even though he alleged that medical clamps were left inside him after undergoing a surgical procedure.
The plaintiff underwent a lymph node dissection, which was performed by two physicians. The physicians used Hem-o-Lok clips during the operation, which are used during surgeries to permanently close bleeding vessels or tissue structures. After surgery, the plaintiff began experiencing abdominal pain, diarrhea, infections, and other complications. Doctors finally discovered a large bladder stone years later. The surgery to remove the bladder stone also revealed the Hem-o-Lok clip within it. The plaintiff’s expert opined that he believed the clip was inserted during the first procedure performed by the defendants, traveled to the bladder, and was not located or retrieved prior to closure. As a result, according to the plaintiff’s expert, the defendants violated the standard of care of the average qualified urologist when they failed to retrieve the loose clip before ending the surgery. The expert further attributed the plaintiff’s later symptoms, including the bladder stone formation, to the negligence of the defendants.
The defendants argued in response that the plaintiff’s expert testimony was conclusory. The appeals court denied this argument because the plaintiff’s expert had provided a factually based statement by a qualified expert, which was sufficient to meet the plaintiff’s burden of proof at that stage of the pre-trial proceedings. On the issue of causation, the defendants argued that the plaintiff failed to establish a causal link between the negligence and the plaintiff’s later complaints and discomfort. The court again disagreed. The plaintiff had presented enough evidence such that there was a greater likelihood that the harm to the plaintiff flowed from conduct for which the defendant was responsible. The appeals court vacated the lower court’s judgment and remanded the case, allowing the plaintiff to proceed with their claims.
This case demonstrates the importance of having experienced surgical error attorneys to navigate the court system’s procedural rules. Our firm has extensive experience. Call us if you believe you have a case. Consultations are always free, and you are not responsible for legal fees unless we are able to recover money for you. To speak with a Rochester-based attorney about your surgical error case, call DeFrancisco & Falgiatano Personal Injury Lawyers at 315-479-9000 or contact us online. We offer evening and weekend appointments as well as home and hospital visits.
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