What to do if asurgical instrument was left inside my wife during a hip operation?

UPDATED: Dec 7, 2011

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What to do if asurgical instrument was left inside my wife during a hip operation?

Although they caught the mistake when it happened. It required a separate surgery and the associated trauma to remove it. It also slowed down recovery of the hip operation. Are we due a settlement for this? What can we expect?

Asked on December 7, 2011 under Malpractice Law, California


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Medical malpractice is negligence.  Negligence is the failure to exercise due care, that degree of care that in this case would have been exercised by other doctors in the community to prevent foreseeable harm.

When your wife completes her medical treatment and is released by the doctor or is declared to be permanent and stationary which means she has reached a point where no further improvement is anticipated, she should obtain her medical bills, medical reports and documentation of any wage loss.  Prior to filing a lawsuit for negligence against the doctor and the hospital where the surgery occurred, it might be possible to settle the case with the insurance carriers for the doctor and hospital.  Your wife's personal injury claim should include the medical bills, medical reports and documentation of any wage loss filed with both the insurance carrier for the doctor and the insurance carrier for the hospital.  Compensation for medical bills is straight reimbursement.  Compensation for wage loss is straight reimbursement.  The medical reports will document the nature and extent of her injury and will be used to determine compensation for pain and suffering.  Compensation for pain and suffering is an amount in addition to the medical bills.  If the case is settled with both insurance companies (doctor and hospital), NO lawsuit is filed.  If your wife is dissatisfied with settlement offers from either one or both insurance carriers, she should reject the settlement offers and file her lawsuit for negligence.  If the case is settled with one insurance carrier, the lawsuit would only be filed against the party (doctor or hospital) with whom a settlement was not reached.  If the case is not settled with either insurance carrier, then both the doctor and hospital are named as defendants in the lawsuit for negligence.  If the case is NOT settled, your wife will need to file her lawsuit for negligence prior to the expiration of the applicable statute of limitations or she will lose her rights forever in the matter.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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