Am I due conpensation for a surgery team leaving a sponge paddy in my daughters’ head?

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Am I due conpensation for a surgery team leaving a sponge paddy in my daughters’ head?

Please let me know. I really feel that we should be compensation for the additional surgery she had to endure to remove it. She went through enough in the first surgery. Then she had to go back the next day to remove the sponge paddy that was left unaccounted for. Thanks for a response.

Asked on August 22, 2016 under Malpractice Law, North Carolina

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).
Negligence on the part of the hospital where the surgery occurred is the failure to exercise due care (that degree of care that a reasonable hospital would have exercised under the same or similar circumstances to prevent foreseeable harm).
Prior to filing a lawsuit against the surgeon and hospital, it may be possible to settle the case with the surgeon's malpractice insurance carrier and the hospital's insurance carrier.
Your daughter's claim filed with the surgeon's malpractice insurance carrier and the hospital's insurance carrier should include her medical bills and medical reports (I assume that she is a minor and therefore there is no wage loss claim).
Compensation for the medical bills is straight reimbursement.  The medical reports will document leaving the sponge pad in your daughter's head and the subsequent surgery to remove it.  The medical reports will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.
If the case is settled with both insurance carriers (surgeon and hospital), NO lawsuit is filed.
If you are dissatisfied with settlement offers from the insurance carriers, reject the settlement offers and file a lawsuit for negligence on behalf of your daughter (if she is a minor; if she is not a minor, she can file a lawsuit herself) against the surgeon and hospital.  You will need to be appointed guardian ad litem to file a lawsuit on behalf of your daughter (if she is a minor) because a minor cannot file a lawsuit herself.
If the case has settled with the insurance carrier for one but not both parties, only name the party with whom the case has not settled as a defendant in the lawsuit.
If the case is NOT settled, the lawsuit for negligence must be filed prior to the expiration of the applicable statute of limitations or your daughter will lose her rights forever in the matter.


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