Medical Malpractice Newsletter
Presumption of Negligence for Retained Foreign Bodies
Res ipsa loquitur is a legal doctrine that infers negligence in a situation that lacks direct evidence of wrongdoing. Translated from Latin, res ipsa loquitur means, “the thing speaks for itself.”
When res ipsa loquitur is applied to a claim, evidence must be produced from which a jury would decide that by a preponderance of the evidence (more likely than not) that the accident was the result of the negligence of the defendant.
Retained Foreign Bodies
“Retained foreign bodies” is the term for medical equipment that is accidentally left in the patient’s body after a surgical procedure and presents an obvious claim for medical malpractice. Unlike other medical malpractice claims, claims for retained foreign bodies do not need to prove a breach of an accepted standard of care. The doctrine of res ipsa loquitur is available in retained foreign bodies cases to circumvent the standard of care and breach requirement.
The American College of Surgeons recommends that the following procedures be followed to prevent the retention of foreign bodies in the patient:
- Consistent application and adherence to standard counting procedures
- Performance of methodical wound exploration before closure of the surgical site
- Use of x-ray detectable items in the surgical wound
- Maintenance of an optimal operating room environment to allow focused performance on operative tasks
- Employment of x-ray or other technology (i.e. bar coding, radiofrequency detection) to ensure items have not been left in the patient
- Suspension of these measures as required in life-threatening situations
Res Ipsa Loquitur Applied to Retained Foreign Body Claims
The most common medical situation in which res ipsa loquitur is applied to medical malpractice claims is when a patient has a retained foreign body after a surgical procedure. In this situation, the patient would not need to prove that the physician deviated from a standard of care that a reasonable physician would have used by leaving the foreign body in the patient. The physician is accepted as negligent because of res ipsa loquitur, and the physician’s negligence “speaks for itself” with the presence of a foreign body in his patient after the surgical procedure is complete.
A count of the equipment and tools before and after a surgical procedure is a protective measure used by hospitals to prevent retained foreign bodies. Though the physician is presumed negligent where foreign bodies are retained, he may attempt to defend himself if he relied on a nurse’s or other surgical team member’s count of all the equipment after the procedure.
The “before and after” count of equipment is viewed as a hospital responsibility, thereby reallocating the negligence to the hospital.
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