The law of Virginia (VA) related to lawsuits against hospitals or doctors for leaving a foreign object like a surgical towel in your body after an operation has a special discovery rule that gives the patient one year to bring the claim forward after realizing that the surgical sponge or towel has been left in their body. The regular rule for the statute of limitations in Virginia for medical malpractice is two years, meaning that the patient must file suit against the at-fault healthcare provider within two years of the negligence, mistake, or error by that hospital or doctor. Virginia, however, has a special rule extending the time to file suit in the case where the patient has had a surgical procedure and the surgeon, technicians or nurses in the operating room have left something in the patient’s body and then closed the patient up not realizing that. Obviously the hospital and doctor are not supposed to leave things in you, but it is not uncommon for these retained surgical device cases to arise, which differ from surgical errors involving accidentally cutting,perforating or nicking a body part like the colon or bowel. Often the patient will go months if not longer before coming to realize that they have some medical equipment like a surgical towel or lap sponge still inside their abdomen after an operation. What typically happens is that the object becomes infected or blocks up some bodily function causing pain. Eventually the patient will get an X-ray or other diagnostic test which will show that something foreign is inside their body cavity.
Realizing that there was not a proper accounting of medical supplies done in the operating room may take some time. At first the family doctor or internist who sees the patient post surgically may not realize this possibility even though the patient reports that she has had a recent hysterectomy or abdominal surgery. The good thing about the law which extends the time in this situation is that it is more fair to the patient to run the time to file the suit from the time that they knew or could have known that this has happened to them rather than from the time that the mistake was first made.
If you think you have had this happen to you or a loved one like your mother or wife, sister or daughter, you should contact a competent medical malpractice injury lawyer as soon as possible. The deadline issue for bringing the claim is still a tricky one. Also the insurance companies for the doctor and hospital will typically fight these claims hard even though the mistake may be admitted. Among other things the surgeon will typically blame the hospital staff for their failure to do the towel and sponge count and they will in turn point the finger back at him for being the captain of the ship who let something bad happen on his watch and under his command. Both healthcare providers will try to say that maybe the patient herself did something wrong or isn’t as hurt as she claims despite what is typically a very bad period of pain and the need for at least one more operation to go in and remove the surgical towel or sponge from the patient’s body. Any medical error which results in serious and permanent injury should be looked into both to get compensation for the patient and their family and to improve the medical system so that they realize and pay the price for preventable injuries and death.
Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia practicing primarily in the southeastern U.S. and handles only injury law, including car, truck, railroad, and medical negligence cases and more. The firm’s website is: hsinjurylaw.com, the firm edits two injury law blogs: Virginia Beach Injuryboard & Norfolk Injuryboard, and also hosts a video library covering many FAQ’s on personal injury subjects.
Rick Shapiro has practiced personal injury law for over 30 years in Virginia, North Carolina, and throughout the Southeastern United States. He is a Board-Certified Civil Trial Advocate by the National Board of Trial Advocacy (ABA Accredited) and has litigated injury cases throughout the eastern United States, including wrongful death, trucking, faulty products, railroad, and medical negligence claims. During his three-decade career, Shapiro has won client appeals before the VA Supreme Court, VA Court of Appeals, NC Supreme Court, SC Supreme Court, WV Supreme Court, TN Supreme Court, and three times before the United States Court of Appeals for the Fourth Circuit, underscoring Shapiro’s trial achievements. In addition, he and his law firm have won settlements/verdicts in excess of $100 million. His success in and out of the courtroom is a big reason why he was named 2019 “Lawyer of the Year” in railroad law in U.S. News & World Report's Best Lawyers publication (Norfolk, VA area), and he has been named a “Best Lawyer” and “Super Lawyer” by those peer-reviewed organizations for multiple years. Rick was also named a “Leader in the Law, Class of 2022” by Virginia Lawyers Weekly (total of 33 statewide honorees consisting of lawyers and judges across Virginia). And in September 2023, Rick was selected as a recipient of the National Board of Trial Advocacy (NBTA) 2023 President’s Award. Although many nominations were submitted from across the country, Rick was just one of eight attorneys chosen by the prestigious National Board which certifies civil trial attorneys across the U.S. Rick was also recently named to Virginia Lawyers Weekly 2024 Virginia’s Go To Lawyers Medical Malpractice. The attorneys awarded this honor are nominated by their colleagues and chosen by a panel from the publication.
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