I was horrified to find out that I suffered an infection from a swab that was left inside me after bowel surgery; is it possible to receive compensation if I make a claim for an item left inside after an operation?
It would appear that you will be entitled to make a claim for an item left inside after an operation, as the surgeon breached a duty of care by failing to remove all foreign objects before performing a closure after surgery, and as a result of negligence by the surgeon you sustained an injury.
The first step to take is to contact the HSE by writing an official letter of complaint about the surgical error. It is important that the reason for the mistake is established by the HSE so that action can be taken to prevent other patients from suffering unnecessarily. An HSE investigation must also be completed before you will be able to make a personal injury* claim.
After the letter of complaint has been sent you should seek legal advice about recovering compensation for your infection. A claim for compensation for an item left behind in a patient is beyond the remit of the Injuries Board, and any request for a claim assessment will be denied. You will therefore need to instruct a solicitor to investigate your claim for a foreign object left in a patient and to assess the level of compensation that can be recovered.
After a response has been received by the hospital and the surgeon, and a copy of your medical notes have been obtained, your solicitor will consult an independent medical expert in order for your case to be reviewed. A retained surgical swab is certainly the probable cause of your infection; but it must be proven ‘on the balance of probabilities’ that this was the case in order for your claim to be successful. Patients can suffer infections after surgery even when a surgeon performs an operation correctly and makes no errors, so the link between the surgical error and your infection must be medically established.
Once eligibility to claim for an item left inside after an operation has been confirmed, the amount of compensation for a retained surgical swab can then be calculated. With the assistance of an expert surgeon or other medical professional, your solicitor will determine the amount of pain and suffering caused by your injury, if the infection is likely to cause you any long term health problems and how your quality of life has been affected due to the surgical mistake.
You mention that you were horrified by the thought of a foreign object being left inside you and this is perfectly understandable. If you have suffered any mental health problems such as anxiety, panic attacks or depression after finding out about the mistake, it may be possible to factor this into the compensation for an item left behind in a patient that is claimed; provided any mental health problems suffered can be confirmed by a psychiatrist.
Compensation for a retained surgical swab can also include any financial losses suffered due to the infection (or the surgical error), such as lost earnings due to having to take unpaid time off work while recovering from the infection and the operation to remove the surgical swab.
Once you have been informed about the claims process, legal costs and the value of your claim for a foreign object left in a patient, you can then decide whether you wish to proceed with legal action against the surgeon.