Medical malpractice in New York and all other jurisdictions is based on the idea that when a medical provider causes personal injury or death to a patient by administering substandard professional care, the provider is legally liable for the value of the losses the patient suffers. Surgical errors represent a large source of such claims. The kinds of surgical errors that happen are virtually unlimited. One of the most surprising and shocking is when a surgeon sews up the surgical site without first removing all of the sponges and medical paraphernalia that may have been placed inside the body during an operation.
It usually falls on the whole surgical team to make a final count of all instruments, sponges and other devices before closing up the surgical site. That is generally done successfully, without incident. However, there are numerous reported cases where surgeons, hospitals, and medical personnel have been sued for actually leaving inside the patient's body a tool, sponge or other surgical item.
Sometimes the body can adjust to a foreign substance, but not always. Furthermore, the emotional and psychological effect on the patient can be devastating, with both physical and mental repercussions. In one recent case in Ohio, a husband brought a wrongful death action against a hospital, surgeon, and supportive surgical team, for leaving a laparotomy sponge in his wife's abdomen after a 17-hour operation.
She died 15 months later, after suffering through two more surgeries. The two additional procedures were unsuccessful attempts to retrieve the sponge. In one of those operations, her spleen was injured. A third “search and retrieve” operation was conducted by a new physician at a new hospital, and the item was removed.
The lawsuit claims that it was the sponge and associated surgical errors that led directly to the woman's death. The defendants, however, argue that the woman died from other causes unrelated to their negligent actions. The legal principles governing a case like this are generally the same in New York as in any other jurisdiction, and as a general rule, similar outcomes in the proceedings can be expected.
Source: Dayton Daily News, "Sponge left in woman's body leads to medical malpractice suit", Mark Gokavi, July 14, 2014