Issue: April 2018
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Retained Surgical Items: Internal Risks and Liabilities

Introduction

Retained Surgical Item Injury Risks

Retained surgical items (RSI), foreign items left inside a patient after a surgical procedure, present life-threatening issues for patients and create potential liability for surgeons, hospitals, and the medical team. RSI are considered “never events,” errors in medical care that never should occur and are identifiable, preventable, and serious in their consequences for patients.   

 

For every 10,000 surgical procedures, about 1.32 procedures result in foreign items left inside the patient. An estimated 1,500 to 2,000 retained surgical item cases are brought each year in the United States.   

 

Attorneys, physicians, insurers, employers, and other potential parties to litigation need to understand the types of litigation issues that may arise in connection with an injury involving a retained surgical item.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for medical malpractice claims involving retained foreign objects? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for patient injuries related to retained objects? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for an injury involving a retained surgical item? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer of a health care provider be subject to liability for the provider’s negligence or medical malpractice involving retained objects? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence for a retained surgical object.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving retained surgical items.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of injury from a retained surgical object.

Employers:

Use this checklist to determine if an employer may be held vicariously liable for the actions of an employee or agent, such as a surgeon.

Expert Analysis

How Can Patient Harm Be Prevented From Retained Surgical Items?

Verna C. Gibbs, MD

What Are the Key Definitions for Retained Surgical Item Events?

Susan Wallace, MPH, CPHRM

Litigation

Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving nursing home injuries?


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving nursing home injuries?


Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in retained surgical items cases?



Medical Examples

Retained Surgical Items

This section provides detailed medical information on items that may be left in a patient after a surgical or other hospital procedure, known as retained surgical items (RSI). Surgical equipment, such as sponges, needles, retractors, and other items, are discussed. Included is discussion of the increased risk of RSI in complex surgeries, the discovery and diagnosis of an RSI, the consequences and complications of RSI, second surgeries, and prevention. Also discussed is the patient’s prognosis and ability to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on retained surgical items.


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Retained Surgical Items: Internal Risks and Liabilities

Table of Contents
Introduction

Expert Analysis
   Verna C. Gibbs, MD
   Susan Wallace, MPH, CPHRM

The Perspectives: Improve Your Strategy
   Attorneys Perspective
   Physicians and Health Providers Perspective
   Insurers Perspective
   Employers and Risk Managers Perspectives

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Jury Awards and Settlements

Jury Awards and Settlements

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Retained Surgical Items

Law and Medicine Resources