Do I have any legal claim to sue, when it was discovered that surgical clips were left in after gallbladder surgery, about 20 years ago?

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Do I have any legal claim to sue, when it was discovered that surgical clips were left in after gallbladder surgery, about 20 years ago?

I had gallbladder surgery around 1993. I recently had x-rays, and it was discovered that I had surgical clips in my right upper abdomen. Over the years, I have been having ‘pain’ in my gallbladder, and appendix area, but knew it was not either, because both were taken out at the same time. Am I able to sue, or has the time limit expired? What do I do about the ‘pain?’ I live in California.

Thank you.

Asked on August 13, 2016 under Malpractice Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

The first issue is, when did this occur? The "statute of limitations," or SOL, is the time period within which you must sue: if you don't file the suit before that statutory period expires, you cannot sue. In your state, for medical malpractice, it is the later of 3 years from the malpractice or 1 year from when you discovered, or should have discovered (logically should have discovered, based on symptoms, evidence, etc.) the injury. So if you first found out about the clips more than a year ago and the surgery was more than 3 years ago, it is too late to take legal action.
If you are within the statutory period, then this may be a valid claim, assuming the clips should have been removed at the conclusion of surgery (i.e. if normal procedure would be to remove them). If they should have been removed, then the failure to do so would be negligent, or unreasonably careless, and therefore may be malpractice. If you believe this was the case, consult with a medical malpractice attorney (many provide a free initial consultation to evaluate a case--you can ask about this before making the appointment) to discuss the case, what it might be worth (i.e. what you can sue for), how strong it is, and what it would cost to pursue.


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