Written by attorney James Richard Rowe II

They left "parts" in me after surgery! What can I do? (Q&A)

Q. I had surgery one year ago, and the doctor forgot to remove a staple. It later became dislodged, causing me a great deal of pain and requiring a second surgical procedure. What can I do legally? A. Your lawsuit falls into the category of medical malpractice (medmal). When a doctor's act, or failure to act, deviates from accepted standards of practice in the medical community, he or she has committed medical malpractice. More than likely, failing to remove a staple would rise to the level of malpractice. But in order to file suit, more is needed. Under Illinois law, to file a medmal lawsuit you must attach a letter from a physician stating that the doctor committed malpractice. In most cases an attorney will have an independent doctor review your medical records to determine whether the medical care you received was up to par. If it wasn't, the reviewing doctor will prepare a statement verifying that your case has merit, and the lawsuit will be filed. The cost for obtaining this independent review and the verification can range from a few thousand dollars to the tens of thousands, depending on how long it takes the doctor to review the file, the complexity of the review, etc. Thankfully, most medmal attorneys work on a contingent basis, which means they advance these costs and only get reimbursed if you win. Indiana law requires no such verification, but an astute attorney will usually invest in one to make sure the case has merit before filing, given the fact it's the attorney's dollars at risk. A plaintiff in a medmal case must prove four elements for a successful claim: (1) a duty was owed to the patient by the hospital or physician; (2) the duty was breached, i.e., the doctor failed to conform to the appropriate standard of care; (3) the breach of the duty caused an injury; and (4) the injury caused damages. Doctors and hospitals owe a duty of care to its patients, so the first element is easily satisfied. In your case, clearly the staple caused the pain, and the cost of the second surgery, time off work and pain and suffering from your damages, without which there is no basis for any claim, no matter how negligent the doctor acted. So, your case, like most medical cases, comes down to the second element: proving that the doctor's actions were negligent as compared to acceptable standards of care in the medical community. A deviation from the standard of care is proven by expert testimony or by the doctrine of "obvious error". Obvious error is the simplest form of negligence to prove, as 'it speaks for itself', or as they say in Latin, res ipsa loquitor. The fact your doctor forgot to remove a staple from inside of you seems to speak for itself as negligent, unless there is some reason for his leaving it in. Even then, the fact that it dislodged and caused the complications it did would need to be explained. Such an explanation (at least an honest one) is unlikely. If expert testimony is needed, a doctor will be retained by your attorney to testify at depositions and at trial; if a qualified physician was used for the initial review, that same doctor will usually be used as your expert for trial. If you prove these elements, you should win your case. I would encourage you to discuss the specific facts of your situation with an attorney, but from what you've said it sounds like you may have a good case. I emailed you an article about medmal cases; I hope you found it helpful, and I'll be happy to forward it to any other readers who e-mail me for a copy.

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