Undergoing an operation is one of the most vulnerable moments that you can experience. So, when you later discover a surgical instrument inside your body, you will likely want to seek legal action. Being familiar with the process allows you to take that first step forward.
Proving negligence
Under Oregon law, physicians must provide the level of care, skill and diligence that prudent doctors would use under comparable circumstances in the same or a similar community. To have a medical malpractice claim, you will need to establish the following four elements:
- Your treatment relationship created a professional duty
- The provider failed to meet the applicable standard of care
- That mistake caused your injury
- The resulting harm supports an award of damages
In a retained-instrument case, res ipsa loquitur may allow jurors to conclude that the provider was negligent without expert testimony. The rule usually applies when the mistake would not normally happen without carelessness, the evidence points to the provider and the patient played no role in causing it.
Pursuing financial recovery
The compensation you can recover depends on the treatment you need and how the error has changed your life. Your losses can grow with a second procedure to remove the object, follow-up care for infection or organ injuries and ongoing treatment for chronic pain. If symptoms emerge later, your claim may also reflect their long-term effects.
Oregon law allows both economic and noneconomic damages. Economic damages may cover added medical costs, lost income and reduced earning capacity. Noneconomic damages account for physical suffering, emotional distress and disruption to daily life.
Meeting the filing deadlines
In Oregon, you generally have two years to file a medical malpractice lawsuit after you discover the injury or reasonably should have discovered it. When the problem does not surface right away, this period may begin well after the procedure.
That rule does not keep a claim open indefinitely. Oregon also imposes a five-year cutoff that begins on the date of the treatment, omission or operation at issue, and the law generally bars a lawsuit after that point. If fraud, deceit or a misleading representation prevented you from filing on time, a separate two-year period can run from when you learned or reasonably should have learned of that conduct.
Because the relevant dates might not be clear, an attorney can review your medical records to establish the timeline and identify which physicians, nurses or hospital may bear responsibility. Starting early leaves time to investigate the circumstances and prepare the case before either limit expires.