Can you explain under what circumstances it would be possible to claim compensation for an item left inside during an operation?
There are two primary conditions which have to be fulfilled before it is possible to claim compensation for an item left behind during an operation – firstly that the item was left behind due to a surgical error and, secondly, that the item left behind caused – or is likely to cause -an ‘adverse effect’; for example a loss, an injury or the deterioration of an existing condition.
Establishing negligence in a claim for a medical item left inside a patient is not difficult, as there is rarely any justifiable defence for retained scalpels, swabs and pins. However, if an injury has not been sustained, and the medical item left behind has been discovered and taken out during a subsequent surgical procedure, there will be no grounds to claim compensation for an item left inside during an operation.
If, however, you have not sustained an injury and the item left inside you during an operation is considered to be a potential hazard to your health, your doctor should recommend that you have it removed. This is likely to involve further surgery, for which you should receive retained item compensation to account for the consequences of having to undergo an otherwise avoidable operation.
A third condition also exists, and this relates to the time you have available to make a claim for a medical item left inside a patient. Under the Courts and Civil Liabilities Act 2004, a time limit of two years exists within which you must claim compensation for an item left inside during an operation. If you fail to initiate legal action within this time, your claim for a medical item left inside a patient could be time-barred.
Because there are occasions when items left inside patients are not discovered for many years after the surgical error occurred, the two-year time limit for claiming retained item compensation does not begin until the ‘Date of Knowledge’ on which you have been advised of the error. Although complaints to a hospital or clinic should be made within a one year of identifying a surgical error, the two-year time limit for making claims for retained item compensation is the one you most need to be aware of.
It is recommended that you speak with a solicitor to discuss your entitlement to compensation for an item left inside during an operation as soon as possible. You should inform the solicitor of the circumstances in which it was discovered an item had been left inside you during an operation in order to establish whether you have a claim for a medical item left inside a patient which is worth your while to pursue.
If so, the solicitor will explain to you the procedures for making a hospital negligence claim for compensation in relation to your personal situation. If you have not yet made an official complaint to the hospital at which you underwent the negligent surgery, please speak with the solicitor first to ensure the content of your letter will not contradict anything which may later be contained within a ‘Letter of Claim’.