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Botched or Wrong-Site Surgery Lawsuits: 3 Legal Questions

By Brett Snider, Esq. | Last updated on

Sometimes incredibly strange and terrible results emerge from a surgery, leaving victims of botched or wrong-site procedures with many questions.

One such victim was Carol Critchfield, a California woman who allegedly lived with a small surgical sponge lodged inside her small intestine for four years, causing her daily pain and even more surgery, reports Los Angeles' KCBS-TV. She's now suing a hospital for malpractice.

If you're concerned about being the victim of a botched surgery, here are some legal questions you should be aware of:

1. Isn't It Obviously the Hospital or Doctor's Fault?

Some surgical mistakes seem easily preventable, like when surgeons leave instruments, gauze, or even sponges inside patients' bodies. In Critchfield's case, she had a sponge left in her body cavity for years, leading to its eventual extraction -- along with much of her intestine -- but only after years of pain. Strangely enough, doctors and hospitals may even perform procedures on the wrong site, side, or even on the wrong person based on human errors.

In injury cases, the Latin phrase res ipsa loquitur applies to cases where an injury was so unusual or severe that it normally wouldn't occur without some party acting negligently. Sponges and surgical tools don't hop into patients' abdomens on their own, and courts in these res ipsa loquitur cases will give the victim the presumption that the defendant was negligent. The hospital or doctor can rebut this presumption, so even if it is obvious that a medical injury was someone's fault, the case isn't always a lock.

2. Do You Need an Expert Witness?

If you had the wrong limb amputated or a scalpel was left inside you, you may not need an expert witness to prove the hospital or doctors were negligent. However, in more complex cases involving more technical mistakes or distinctions, a qualified expert may be needed to explain how the botched surgery stemmed from negligence and not just bad luck.

3. How Do You Get Access to Medical Records?

In order to prove that your surgery was botched, you'll need your own medical records or even the hospital's records. You can get most of this information via subpoena or discovery, but you may need to have a judge receive it first.

An experienced medical malpractice attorney can help guide you through the particulars, and answer any other questions you might have regarding botched or wrong-site surgery suits.

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