Court Applies Burden-Shifting Analysis in Medical Malpractice Case Where Foreign Object Is Left in Plaintiff’s Body

Earlier this month, one state’s supreme court issued an opinion in a medical malpractice case alleging that the defendant hospital was responsible for leaving a four-inch piece of tubing in the plaintiff’s body after a surgery. The case required the court to discuss the burden-shifting framework applicable in foreign-object cases, ultimately holding that the framework should apply in all cases of foreign objects being left in a patient’s body, and not just in those cases where the plaintiff cannot recall who left the object in his body.


medic-563425_960_720-300x200
The Facts of the Case

The plaintiff was admitted to the defendant hospital for a colon resection surgery after it was discovered that he had several cancerous polyps. The surgery went as planned, and afterwards some drainage tubing was placed into the plaintiff’s body to help get rid of extra post-surgical fluids.

Prior to his discharge, a nurse came to remove the tubing. She pulled the tubing out, discarded it, and then sent the plaintiff home. Four months later, the plaintiff returned with complaints of pain in the area where the tubing had been. It was subsequently discovered that there was approximately four inches of tubing left in his body. Another surgery was scheduled and performed to remove the tubing.

The plaintiff filed a medical malpractice lawsuit against the hospital, claiming that the nurse was negligent in failing to double-check that all the tubing had been removed. To help prove his claim, the plaintiff cited a state statute that shifted the burden from the plaintiff to the defendant in any case where there was a foreign object left in the plaintiff’s body. The statute was enacted with the realization that, in most cases, patients who have medical supplies left inside of them post-surgery will not know who left the object inside of them, or the circumstances surrounding the failure to remove the object.

The defendant claimed that because the plaintiff knew that it was the nurse who was responsible for leaving the tubing inside of him, the statute should not apply, and the court should not shift the burden onto the defendant to prove that it was not negligent. However, the court disagreed, holding that there was no language in the statute limiting its application to situations where the plaintiff did not know who was responsible for failing to remove the object. As a result, the plaintiff will be permitted to proceed forward on his case either toward trial or settlement negotiations.

Have You Been the Victim of Medical Malpractice?

If you or a loved one has recently been the victim of medical malpractice in the Washington, D.C. area, you may be entitled to monetary compensation. However, it is important that you act quickly, as you may not have long to file your case. The skilled personal injury and wrongful death attorneys at the law firm of Lebowitz & Mzhen, LLC have decades of experience assisting injured clients in seeking the compensation they deserve. Call 410-654-360 today to set up a free consultation with a dedicated attorney.

More Blog Posts:

Court Applies “Natural Accumulation” Rule in Affirming Dismissal of Slip-and-Fall Plaintiff’s Case, Washington DC Injury Lawyer Blog, February 23, 2017

Appellate Court Upholds $21 Million Verdict in Medical Malpractice Case, Washington DC Injury Lawyer Blog, February 2, 2017

Contact Information