Leaving a surgical instrument inside a patient is known as a “never event” in Canada. If this happens to you at an Edmonton hospital, you generally have two years from the date of discovery to file a medical malpractice lawsuit at the Court of King’s Bench.
Going under the knife at the University of Alberta Hospital, the Grey Nuns, or the Misericordia requires immense trust in the surgical team. While most procedures are completed safely, devastating errors can still happen. Among the most traumatic of these are surgical errors where an adjacent organ is punctured, or worse, a foreign object like a surgical sponge or scalpel blade is accidentally left inside the patient’s body.
In the medical community, leaving a retained instrument is classified as a “never event”-meaning it is an error so egregious that it should simply never occur under proper protocols. If you have been the victim of a severe surgical error in Edmonton, you may be entitled to significant financial compensation to cover corrective surgeries, lost wages, and your physical suffering. 🏥
Step-by-Step Process in Edmonton
Because retained instruments are a clear breach of standard hospital protocols, these lawsuits follow a specific trajectory in the Alberta legal system. An experienced lawyer from our local directory can guide you through these steps safely.
Step 1: Immediate Medical Remediation
Your physical health must come first. If you are experiencing severe postoperative pain, infection, or a scan reveals a retained object, you must seek emergency medical care immediately to have the object removed or the punctured organ repaired. Do not wait for legal advice to get the emergency treatment you need.
Step 2: Securing the Operative Report
Your lawyer will quickly request your complete hospital records from Alberta Health Services (AHS), placing special focus on the Operative Report and the nursing staff’s “count sheets.” Surgical teams are required to count all sponges and instruments before and after surgery. A discrepancy here is powerful evidence of negligence.
Step 3: Filing the Lawsuit in Alberta
Your legal team will file a formal Statement of Claim at the Edmonton Court of King’s Bench. In cases of a retained sponge, the defendants typically include the primary surgeon, the assisting nurses, and the hospital administration (AHS) under vicarious liability for failed counting protocols. ⚔
Step 4: The Discovery Rule and Limitation Periods
Sometimes a retained instrument isn’t discovered until years after the surgery. Under the Alberta Limitations Act, the strict 2-year limitation period may not begin on the day of the surgery, but rather on the day you first discovered (or reasonably ought to have discovered) the retained object.
How Much Does it Cost in Edmonton?
Pursuing a hospital or a prominent surgeon requires substantial resources, but victims are typically protected by the way personal injury law firms bill.
| Legal Cost Type | Estimated Cost in CAD |
|---|---|
| Provincial Filing Fee | $250 to initiate the claim at the Court of King’s Bench |
| Lawyer Retainer | $0 upfront. Lawyers take 30% to 35% only if a settlement is won. |
| Disbursements | $15,000+ for medical records, expert surgical reviews, and court reporters. |
How Long Does the Process Take?
While “never events” are easier to prove than complex misdiagnoses, the legal process in Alberta is still lengthy.
- Initial Investigation: Securing the hospital records and a surgical expert’s opinion usually takes 6 to 12 months.
- Filing the Claim: Must be filed within 2 years of the date of the surgery or the date of discovery.
- Resolution: Because retained instrument cases are incredibly hard to defend, the Canadian Medical Protective Association (CMPA) may opt for mediation sooner, often resolving within 2 to 4 years.
Frequently Asked Questions (FAQ)
What exactly is a “never event”?
A “never event” is a serious, largely preventable patient safety incident that should not occur if healthcare providers follow available preventative measures. Examples include operating on the wrong body part, giving the wrong blood type, or leaving a sponge inside a patient.
Who is at fault for a retained surgical sponge?
Liability is usually shared. The primary surgeon is ultimately responsible for the surgical field, but the operating room nurses are legally responsible for conducting an accurate count of all materials before closing the incision. Your lawyer will likely sue both.
Does the CMPA defend surgeons for clear errors?
Yes, the Canadian Medical Protective Association defends its doctors even when an error seems obvious. However, if the evidence of a retained instrument is undeniable, the CMPA is more likely to negotiate a private settlement to avoid a public trial.
Can I claim compensation for my corrective surgery?
Absolutely. If a surgical error forces you to undergo a second operation to remove an object or repair an organ, you can claim damages for the additional pain, the extended recovery time, out-of-pocket medical expenses, and any extra time off work.
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