Preliminary Statement
I was asked to research and prepare a memorandum of law on whether Ms. Price can bring a lawsuit of malpractice after ten years the surgery had been commenced.
Facts
Ms. Price had a successful surgery about ten years ago to repair her colon. However, after the surgery Ms. Price occasionally suffered twinges of pain in her stomach and continue to cause her discomfort. Ms. Price then went for an x-ray and revealed that a sponge is present in the area of her colon. It is evident that the sponge was left in Ms. Price’s chest during her operation ten years ago because that was the only surgical procedure she had.
Question Presented
Whether the sponge left inside of Ms. Price’s colon is a foreign object, an exception …show more content…
Price’s case, a sponge was allegedly left behind inside of her stomach area in the conclusion of the operation, before she left the operating room. This is similar to Flangan where the surgical clamps were left in the plaintiff’s body and Walton where catheter fragment was left inside of the patient. According to medical dictionary, a “sponge” is an absorbent pad made of gauze and cotton used to absorb fluids and blood in surgery or to dress wounds. MediLexicon, http://www.medilexicon.com/medicaldictionary.php?t=84047 (6 Oct. 2015). Applying the common law from Rockefeller v. Moront, the nature and the intended function of a sponge during the operation was for the solely purpose of absorbing fluids and blood, an instrumental purpose like the clamps in Flangan and catheter in Walton. The sponge have neither any “postsurgery healing purpose” as was the case with the nasal stent in LaBarbera, 91 N.Y.2d at 212 nor “continuing treatment purposes” as the case with sutures in Rockefeller, 81 N.Y.2d at 564. Tangible items, such as clamps, scalpels, and sponge, introduced into a patient’s body solely to carry out or facilitate a surgical procedure are foreign object under foreign object exception to medical malpractice statute of limitation if left behind. Rockefeller v. Moront, 81 N.Y.2d at 564, LaBarbera v. New York Eye and Ear Infirmary, 91 N.Y.2d at 212, Walton v. Strong Memorial Hosp., 25 N.Y.3d at
I was asked to research and prepare a memorandum of law on whether Ms. Price can bring a lawsuit of malpractice after ten years the surgery had been commenced.
Facts
Ms. Price had a successful surgery about ten years ago to repair her colon. However, after the surgery Ms. Price occasionally suffered twinges of pain in her stomach and continue to cause her discomfort. Ms. Price then went for an x-ray and revealed that a sponge is present in the area of her colon. It is evident that the sponge was left in Ms. Price’s chest during her operation ten years ago because that was the only surgical procedure she had.
Question Presented
Whether the sponge left inside of Ms. Price’s colon is a foreign object, an exception …show more content…
Price’s case, a sponge was allegedly left behind inside of her stomach area in the conclusion of the operation, before she left the operating room. This is similar to Flangan where the surgical clamps were left in the plaintiff’s body and Walton where catheter fragment was left inside of the patient. According to medical dictionary, a “sponge” is an absorbent pad made of gauze and cotton used to absorb fluids and blood in surgery or to dress wounds. MediLexicon, http://www.medilexicon.com/medicaldictionary.php?t=84047 (6 Oct. 2015). Applying the common law from Rockefeller v. Moront, the nature and the intended function of a sponge during the operation was for the solely purpose of absorbing fluids and blood, an instrumental purpose like the clamps in Flangan and catheter in Walton. The sponge have neither any “postsurgery healing purpose” as was the case with the nasal stent in LaBarbera, 91 N.Y.2d at 212 nor “continuing treatment purposes” as the case with sutures in Rockefeller, 81 N.Y.2d at 564. Tangible items, such as clamps, scalpels, and sponge, introduced into a patient’s body solely to carry out or facilitate a surgical procedure are foreign object under foreign object exception to medical malpractice statute of limitation if left behind. Rockefeller v. Moront, 81 N.Y.2d at 564, LaBarbera v. New York Eye and Ear Infirmary, 91 N.Y.2d at 212, Walton v. Strong Memorial Hosp., 25 N.Y.3d at