One of the medical horror stories you often hear about is a surgeon negligently leaving an object inside of a patient. In fact, this is quite a common problem. According to a 2012 report from Johns Hopkins University, surgeons in the United States “leave an object in a patient at least 39 times a week.” And it may be months or even years before the patient learns about it.
In fact, Georgia’s medical malpractice laws expressly contemplate such scenarios. Normally, a patient has two years from the date of a medical procedure to bring a malpractice case. When a “foreign object has been left in a patient’s body,” the patient has one year from that date of discovery to bring a claim, even if it falls outside the normal two-year statute of limitations.
Nassar Cure v. Intuitive Surgical, Inc.
Simply leaving an object inside of a patient does not, in and of itself, establish a personal injury claim. The U.S. 11th Circuit Court of Appeals in Atlanta recently addressed this issue in rejecting a lawsuit brought by two patients who alleged they were injured due to a defective medical device that left metallic residue in their bodies. Affirming a lower court’s earlier ruling, the appeals court said controlling Georgia case law required dismissal of the men’s claims.
Specifically, the plaintiffs said they were former heart surgery patients who later learned they had “small metallic particles” in their brains. These particles were purportedly “metal shavings that were shed” by certain instruments used by the surgeons who performed the operation. The plaintiffs filed a suit, on behalf of themselves and other patients who were similarly affected, against the manufacturer of the instruments in question.
The plaintiffs’ alleged they were injured simply because there were now metallic particles in their brain. Both the trial court and the 11th Circuit rejected this theory of liability. As the 11th Circuit explained, the Georgia Court of Appeals has previously held that the presence of “elevated levels” of certain chemical compounds does not constitute an “injury” under state law. Rather, a victim must show how the chemicals have manifested themselves to the detriment of the plaintiff, i.e. by causing “actual disease, pain, or impairment of some kind.”
In the present case, the 11th Circuit rejected the plaintiff’s attempt to distinguish those claims from the ones at issue in the earlier Georgia case, which involved toxic chemicals rather than a “foreign object” left due to surgery. The appeals court said the source of the chemical made no difference.
Again, the Court did not suggest that it was okay to leave metal particles inside a patient’s brain. The plaintiff’s complaint needed to allege a concrete harm beyond the mere presence of the foreign objects. For example, the plaintiffs argued they “suffered and will continue to suffer physical, neurological, and mental effects,” but the complaint offered no specifics, according to the 11th Circuit. Merely offering “vague, conclusion statements” of injury is insufficient under Georgia law to establish a case for negligence.