Medical Objects Left Inside Patients
We have had recent success in obtaining a discontinuance against the Defendant Trust in a claim involving a foreign object left in situ. Broadly, the Claimant (“C”) alleged that surgeons negligently left plastic coating in his body following removal of a spinal cord stimulator wire that had been in place for 12 years. The plastic coating of the wire was left in situ causing a low-grade infection and C suffered from related symptoms for around two years.
This claim, like many others, was made on the assumption that leaving medical equipment in a patients’ body must equate to negligence. Most clinical negligence solicitors will have come across this kind of claim, usually involving a sponge or packing towels. Indeed, between 2013 and 2019 over 600 cases of this kind were settled, resulting in a bill of £25.3 million for the NHS. However, there is a distinct difference between carelessly leaving a swab in someone and leaving part of a medical device in situ upon attempting to remove it.
To defend this claim, we obtained robust evidence from a consultant neurosurgeon who advised that as the stimulator removal is a blind procedure, the surgeons could not have been aware that some of the plastic coating had broken off from the wire during its removal. It was also a known complication of the procedure, and C was informed of the risk. Further, even if the surgeons had been aware of the retained plastic, it would not be advisable to attempt to retrieve it. This would only serve to put the patient at more risk of harm to subject them to extended surgery to remove something designed to remain inert with the body for many years. The surgeons would therefore have reasonably judged that the risk of further surgery was greater than the risk of the plastic remaining in situ.
Our expert drew a helpful comparison between this claim and removing a shunt from a patient. Commonly, in the shunt scenario, the tubing tethers and breaks during removal. Even if the surgeon knows that large chunks of the shunt have been retained, it is standard practice to leave it in because of the risks associated with further attempts at removal. These “device removal” scenarios (where the device is removed incompletely) are not comparable to accidentally leaving a swab. But for the removal surgery, the foreign body would have been left in the patient in any event and the surgeon can assume that it is likely sterile. The only real risk is if the retained object migrates and causes irritation, as happened in this case.
Therefore, as often is the case in clinical decision-making, there is an important question of which course of action will cause the most harm. Often, where a foreign body has already been inside a patient for several years, it will not be in their best interests to remove it because the risks of additional surgery are significantly higher than the risk caused by the (likely sterile) foreign body. As such, these claims can be defended (assuming the process for removal was appropriate), and defence solicitors should carefully consider the nature of their “foreign body” claim before throwing in the towel.