Retained foreign bodies (RFBs) after surgery are situations where surgical items are unintentionally left in the body after skin closure. These are considered to be preventable errors and as such the cost to fix complications from RFBs are not covered by Medicaid, Medicare and private insurers. They represent a significant expense for hospitals because they are responsible for the cost of patient care related to the RFB as well as for potentially paying for malpractice claims. While hospitals actively try to reduce the incidence of RFBs, according to a 2019 report, approximately one in every 5,500 procedures involves an RFB. Generally, RFBs represent a breach of the standard of care for surgical malpractice purposes, however, there are still issues to be resolved in litigation requiring the use of expert witnesses on both sides.
RFBs are most common during abdominal surgery and patients with a high body mass index (BMI) are at a higher risk. Common objects left behind in surgery include gauze, sponges, towels, clamps, scissors, catheters, needles, and blades. Sometimes instruments break and parts remain in the body. They can cause a range of complications such as punctures, internal bleeding, infections, nerve damage, blockages, and death. Typically, addressing the RFB requires a second surgery, which carries its own risks as well as additional medical bills and recovery time.
There are several reasons why RFBs occur, including distractions, failure to account for all objects inserted into the body, failure to verify integrity of objects upon removal, poor safety protocols, and lack of team training and communication. Hospitals typically have detailed policies and procedures regarding monitoring objects used in surgery. However, RFBs tend to involve emergency surgeries, multiple surgical procedures and teams, and staff turnover during procedures making it difficult to supervise compliance while providing patient care.
When RFBs occur, patients may file a malpractice against the surgeon and surgical staff based on negligence during the surgery. Hospital administration may also be sued seeking to hold them responsible for failing to implement appropriate surgical policies and procedures. Post-surgery there may be additional claims against physicians and hospital staff based on a delayed diagnosis and treatment of the RFB. Patients can recover economic damages for medical expenses, lost wages, and loss of future income and benefits. Noneconomic damages for pain and suffering, emotional distress, disability, and related claims may also be available. However, many states cap noneconomic damages except where there is gross negligence.
While the burden of proof in RFB claims is often reversed under the doctrine of res ipsa loquitur, surgical expert witnesses with expertise in the particular type of surgery are essential to plaintiff claims. Their role is to educate the trier of fact on how RFBs occur, how a delay in recognition ensued, and whether the patient was affected by the occurrence. They are also used to distill the respective role of each Operating Room (OR) provider and to consider theories of gross negligence in order to overcome caps on noneconomic damages. Operating Room Nurses are necessary to opine on the responsibility of OR Nurses and to perform proper accounting and documentation regarding operative devices and supplies. For the defense, the same surgical expert witnesses are required to counter claims of malpractice and gross negligence and refute damages when harm is negligible.
Healthcare Administrators such as Operating Room Nurse Directors are also beneficial as expert witnesses on both sides. Such specialists can speak to the appropriate standards of care and treatment of surgical patients and whether the hospital had appropriate policies and procedures to minimize incidents of Retained Foreign Bodies.
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