Compensation Claims for Swabs left in a Patient

How do compensation claims for swabs left in a patient work? My father was found to have one in him ten years after his original surgery.

Answer:

There are two conditions that have to be met before your father is eligible to make compensation claims for a swab left in a patient. First the swab must have been left in your father due to the negligence of a medical practitioner who “at the time and in the circumstances” showed a lack of skill – or the ability to demonstrate that skill – and breached his or her duty of care for your father´s wellbeing.

Inasmuch as it may appear obvious that a swab left in a patient should be regarded as medical negligence, if there were extenuating circumstances – for example your father experienced complications during his surgery and the medical practitioner responsible for removing the swab was involved in saving his life – that medical practitioner might not be considered negligent in his or her actions.

The second condition that needs to be satisfied before making a claim for swabs left in a patient is that the patient must have sustained an injury or the deterioration of an existing condition due to the presence of the swab. Even though it had been in your father´s body for ten years, if it had not damaged your father´s health, there are no grounds to make claims for compensation for swabs left in a patient.

The injury that you father has sustained and the impact it has made to his quality of life will influence how much compensation for swabs left in a patient your father receives. The calculation of compensation for swabs left in a patient will be based on previous awards made in similar circumstances in relation to your father´s age and general state of health. However, unlike most other injury claims, compensation claims for swabs left in a patient have to be dealt with by a solicitor rather than the Injuries Board Ireland.

This is because under the Personal Injuries Assessment Board Act 2003, the Injuries Board Ireland will assess applications for personal injury compensation “other than a personal injury arising out of medical negligence”. As a claim for a swab left in a patient will ultimately be resolved by medical opinion rather than tangible evidence, the Injuries Board Ireland will decline any application submitted to them for the assessment of compensation for swabs left in a patient.

Once you have spoken with a solicitor, he or she will engage a medical expert to review your father´s medical notes from the surgery to establish whether the swab left inside your father was due to medical negligence or was an unavoidable incident. Should the medical expert and your solicitor agree that you have a claim for a swab left in a patient which is worth your while to pursue, your solicitor will identify the negligent party and send them a Letter of Claim.

Once liability is accepted, your solicitor will then enter into negotiations with the negligent medical practitioner´s insurance company to obtain the maximum possible settlement of compensation for swabs left inside a patient. If complications arise – such as a denial of liability or a dispute over how much compensation for swabs left in a patient your father is entitled to – your solicitor may have to issue court proceedings. Although compensation claims for swabs left in a patient are usually settled before court action is required, this is something that your father will need to be aware of before instructing a solicitor to make a claim for a swab left in a patient.

Your father should also be made aware that he only has two years from the date on which it was discovered that a swab had been left inside of him to make a claim for a swab left in a patient. Therefore, if he would like to discuss the circumstances of his injury with an experienced medical negligence solicitor, he is advised to do so as soon as possible.