How long do you have to file a retained surgical object claim?

Retained surgical objects are what health care practitioners refer to as “never events,” meaning they should never happen. Yet every year, unsuspecting patients leave operating rooms with unintended foreign objects left behind in their bodies.

A retained surgical item could cause health complications such as internal bleeding, organ damage, perforation and infections. Filing a medical malpractice lawsuit against the surgeon or hospital is often the best way to recover compensation as a victim. In Delaware, a victim has a small window of opportunity to bring a claim.

Medical malpractice statutes of limitations

A statute of limitations is a deadline by which a plaintiff must file his or her claim, or else lose any right to compensation. A statute of limitations aims to keep things fair and just between a plaintiff and defendant during a claim. Without a time limit, a plaintiff could conceivably wait until evidence has disappeared or been destroyed to file a lawsuit, potentially taking away the defendant’s chances of defending himself or herself.

Each state imposes different statutes of limitations on both civil and criminal cases. The statute of limitations on most personal injury claims in Delaware is two years from the time of the accident. If the incident resulted in wrongful death, the family has two years from the date of death, if different from the date of the accident. Professional malpractice claims have the same deadline. An important exception exists, however, that impacts many retained surgical object cases: the discovery rule.

What is the discovery rule?

The discovery rule extends the statute of limitations in cases where the victim does not discover his or her injuries until after the date of the incident. In a retained surgical object case, a victim might not discover the left-behind item for months or even years after the fact.

In these situations, the courts in Delaware will extend the statute of limitations by one year. If the patient did not immediately recognize the injury and could not have reasonably discovered it within two years, he or she has three years from the date of the incident instead.