Illinois mother Michelle Eberwein had surgery on her back in 2007. Years later, she discovered an error had been made with major long-term implications.
Shortly after the surgery, Eberwein began to experience a mysterious pain in her left side, according to ABC 7 Chicago. She was told that there would be pain in the first year after the surgery, but she continued to have pain periodically for years afterward.
On several occasions, Eberwein went to the emergency room, where she received several diagnoses including kidney stones and IBS. Finally, in September 2015, nearly nine years after the surgery, an ER doctor discovered that a surgical tool had been left inside her.
What’s perhaps most troubling about this case is that medical reports dating all the way back to 2008 indicate that care providers knew something was inside Eberwein – specifically, something radiologists referred to as an “irregular high density material.”
However, Eberwein was never informed of this known issue. According to news reports about the incident, this is because Illinois has no electronic reporting system to file such surgical errors due to a legislative budget impasse.
Eberwein should have been notified of the foreign object in her body by means of a “care team.” Because of the bureaucratic issues, that team was not able to properly transmit the information.
Legal implications of cases involving surgical tools left in the body
Surgical errors involving foreign objects left inside the body are some of the most common – and potentially serious – medical mistakes nationwide. A Johns Hopkins study, for instance, estimated that surgeons in the U.S. leave objects like sponges or towels inside the body 39 times every week. That number may even be low, as foreign objects are typically only found when the patient experiences a complication, and efforts are made to find the source.
The same study referred to these errors as “never events” – that is, mistakes that are completely preventable. While it’s impossible to prevent every surgical complication, leaving an object inside a patient’s body is a blatant-and avoidable-error that should give rise to a legitimate medical malpractice claim.
Because surgery is invasive, an error during an operation can lead to serious long-term complications. Cases involving foreign objects, for instance, generally require another surgery at great expense to remove the foreign object. When an object is left inside the body for a long period of time, as in Eberwein’s case, it often becomes surrounded by scar tissue, which makes surgery to remove it even more dangerous and costly.
Unfortunately, Eberwein appears to have limited legal options because of Illinois’ statute of limitations. Under state law, instances of medical malpractice need to be reported within four years of the incident. Even though Eberwein’s care providers were aware of an issue and did not inform her, and even though she tried on several occasions to uncover the source of her pain without success, she is likely to be unable to sue because more than four years have passed.
Some states do have exemptions in their statute of limitations to allow patients to file claims after the deadline in these misplaced object cases. However, Illinois does not.
Although Eberwein took reasonable steps to find the source of her pain, she says that in hindsight, she regrets not immediately asking for detailed reports following her ER visits.
The current state of medical reporting in Illinois is one reason why patients need to advocate for themselves after any surgery – and need to retain experienced legal counsel right away as soon as they suspect something may be wrong. Especially in cases involving completely preventable “never events,” negligent surgeons and the hospitals that employ them need to be held accountable for the harm they cause.
