Do I have any legal claim to sue, when it was discovered that surgical clips were left in after gallbladder surgery, about 20 years ago?

UPDATED: Sep 30, 2022

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Do I have any legal claim to sue, when it was discovered that surgical clips were left in after gallbladder surgery, about 20 years ago?

I had gallbladder surgery around 1993. I recently had x-rays, and it was discovered that I had surgical clips in my right upper abdomen. Over the years, I have been having ‘pain’ in my gallbladder, and appendix area, but knew it was not either, because both were taken out at the same time. Am I able to sue, or has the time limit expired? What do I do about the ‘pain?’ I live in California.

Thank you.

Asked on August 13, 2016 under Malpractice Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

The first issue is, when did this occur? The "statute of limitations," or SOL, is the time period within which you must sue: if you don't file the suit before that statutory period expires, you cannot sue. In your state, for medical malpractice, it is the later of 3 years from the malpractice or 1 year from when you discovered, or should have discovered (logically should have discovered, based on symptoms, evidence, etc.) the injury. So if you first found out about the clips more than a year ago and the surgery was more than 3 years ago, it is too late to take legal action.
If you are within the statutory period, then this may be a valid claim, assuming the clips should have been removed at the conclusion of surgery (i.e. if normal procedure would be to remove them). If they should have been removed, then the failure to do so would be negligent, or unreasonably careless, and therefore may be malpractice. If you believe this was the case, consult with a medical malpractice attorney (many provide a free initial consultation to evaluate a case--you can ask about this before making the appointment) to discuss the case, what it might be worth (i.e. what you can sue for), how strong it is, and what it would cost to pursue.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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