Federal Court Rejects Lawsuit Over Metal Shavings Left in Surgical Patients’ Brains

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One of the medical horror stories you often hear about is a surgeon negligently leaving an object inside of a patient. In fact, this is quite a common problem. According to a 2012 report from Johns Hopkins University, surgeons in the United States “leave an object in a patient at least 39 times a week.” And it may be months or even years before the patient learns about it.

In fact, Georgia’s medical malpractice laws expressly contemplate such scenarios. Normally, a patient has two years from the date of a medical procedure to bring a malpractice case. When a “foreign object has been left in a patient’s body,” the patient has one year from that date of discovery to bring a claim, even if it falls outside the normal two-year statute of limitations.

Nassar Cure v. Intuitive Surgical, Inc.

Simply leaving an object inside of a patient does not, in and of itself, establish a personal injury claim. The U.S. 11th Circuit Court of Appeals in Atlanta recently addressed this issue in rejecting a lawsuit brought by two patients who alleged they were injured due to a defective medical device that left metallic residue in their bodies. Affirming a lower court’s earlier ruling, the appeals court said controlling Georgia case law required dismissal of the men’s claims.

Specifically, the plaintiffs said they were former heart surgery patients who later learned they had “small metallic particles” in their brains. These particles were purportedly “metal shavings that were shed” by certain instruments used by the surgeons who performed the operation. The plaintiffs filed a suit, on behalf of themselves and other patients who were similarly affected, against the manufacturer of the instruments in question.

The plaintiffs’ alleged they were injured simply because there were now metallic particles in their brain. Both the trial court and the 11th Circuit rejected this theory of liability. As the 11th Circuit explained, the Georgia Court of Appeals has previously held that the presence of “elevated levels” of certain chemical compounds does not constitute an “injury” under state law. Rather, a victim must show how the chemicals have manifested themselves to the detriment of the plaintiff, i.e. by causing “actual disease, pain, or impairment of some kind.”

In the present case, the 11th Circuit rejected the plaintiff’s attempt to distinguish those claims from the ones at issue in the earlier Georgia case, which involved toxic chemicals rather than a “foreign object” left due to surgery. The appeals court said the source of the chemical made no difference.

Again, the Court did not suggest that it was okay to leave metal particles inside a patient’s brain. The plaintiff’s complaint needed to allege a concrete harm beyond the mere presence of the foreign objects. For example, the plaintiffs argued they “suffered and will continue to suffer physical, neurological, and mental effects,” but the complaint offered no specifics, according to the 11th Circuit. Merely offering “vague, conclusion statements” of injury is insufficient under Georgia law to establish a case for negligence.

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Frequently Asked Questions

Here are some of the most common questions people ask us about personal injury. We’re happy to answer your questions at your personalized consultation.
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Can any attorney handle a personal injury case?

Any attorney that is licensed in the jurisdiction where your case is can represent you. But a personal injury attorney has specialized experience and resources. They understand how a personal injury claim can be complex, and they can identify issues that are the most important to your case. At The Persons Firm, our entire practice is devoted to the needs of personal injury victims.

How long do I have to file a personal injury claim?

Most Georgia personal injury claims must be filed within two years of the accident. When a claim involves the government, the deadline is much shorter. You should never wait to contact a lawyer to start preparing your case.

How do you start a personal injury case?

You start a personal injury case by determining the grounds for compensation and who may be responsible to pay. Then, you prepare a summons and complaint, file it in the court with jurisdiction, and serve each defendant. Sometimes, you can negotiate a settlement directly with the insurance company. But direct negotiations don’t count as formally starting a personal injury case. While you negotiate, the deadline to start the case still applies.

What is a personal injury consultation?

A personal injury consultation is a conversation with a lawyer about your case. The consultation may cover whether you have a claim for personal injury compensation, what your claim may be worth and the strengths and weaknesses of the case. You will talk about how legal representation works. You’ll meet the legal team that would handle your case if you hire them.

What kind of lawyer do I need to sue for an injury?

A lawyer who handles injury lawsuits is a personal injury lawyer. You choose and hire the lawyer yourself. They represent your interests and file a legal claim on your behalf.

Do I have a good personal injury case?

To have a good personal injury case, you must have evidence to prove that someone else is legally at fault for causing your injuries. Usually, this is based on negligence, or their failure to exercise reasonable care and caution in a situation. It may also be based on recklessness or intentional harm. In addition, you must show what damages you have and what compensation you should receive.

How much compensation can I get for an injury case?

In Georgia, each case for personal injury compensation is valued individually. It depends on the defendant’s degree of fault and what damages you have. Damages may include economic and non-economic harm. Non-economic harm means pain and suffering, emotional anguish, disability and other intangible losses.

Will I have to testify in court for my personal injury case?

We understand the thought of going to court can cause anxiety. Most personal injury cases don’t require the victim to testify in court. As your lawyers, we’ll work to understand your goals. If called to testify, we’ll prepare with you and represent you in court. With our team of personal injury lawyers, you’ll always be supported and prepared.

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