Legally Speaking: Dueling defendants in retained foreign object case


Unless there is definitive evidence that one defendant is solely responsible, once jurors see “dueling defendants” they most often assume the worst happened and find blame all around.




MS. COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to


In 2009 a gynecologist performed a hysterectomy on a 61-year-old New York woman. The doctor was assisted by a second gynecologist, a nurse, and 2 surgical technicians. During the procedure the surgeon noted bleeding from the uterine artery and converted to an open procedure immediately. The bowel was retracted with the insertion of a blue towel. The artery was repaired and the operation completed. After the surgery, the patient had fever, odorous discharge, and abdominal pain. A month later a reoperation revealed that the towel used for bowel retraction had not been removed. The patient’s surgical wound required open healing and a temporary colostomy. After the colostomy reversal she developed an incisional hernia and the hernia repair required resection of a small portion of her bowel.

The woman sued all those involved with the original operation and claimed that they should have ensured that the towel was removed and that its placement inside her abdomen was inappropriate. She also contended that the gynecologist had failed to adequately clamp or suture the uterine artery.

One of the surgical technicians claimed that she did not provide the towel and did not see the towel used, so she was not aware that it had to be accounted for. She also maintained that its color indicated that it lacked a radiopaque tag and that hospital policy forbade use of those towels in an open wound. The hospital contended that the surgeons had inserted the towel and because they were not employees, the hospital was not responsible. The surgeon claimed that he specifically requested a blue towel, that the surgical technician provided the towel, and that the towel’s use in an emergent situation was necessary and had prevented the patient from bleeding to death.

The verdict

A jury found negligence by the surgeon, the assistant, and the surgical technician and a $7.2 million verdict was returned.


It is, of course, negligent to leave a foreign object in a patient’s body during surgery, and these cases are usually limited to determining the amount of damages to be paid, and most often settle without a jury trial if a reasonable amount can be agreed upon. In this case, 2 of the defendants blamed each other in an attempt to get themselves off the hook, a scenario that is usually not successful, and especially not in front of a jury. Unless there is definitive evidence that one defendant is solely responsible, once jurors see “dueling defendants” they most often assume the worst happened and find blame all around.

Click here for more Legally Speaking


Claim that delayed cesarean delivery caused cerebral palsy

In 2009, an 18-year-old Pennsylvania woman went to the hospital in labor at 38 weeks’ gestation with her first child. She was attached to a fetal heart rate (FHR) monitor shortly after her arrival the tracing was normal for about 3 1/2 hours before dropping to 60 bpm. The nurse changed the patient’s position, administered oxygen, increased intravenous fluids, and within a couple of minutes rang the emergency call bell. Another nurse responded, and the call bell was rung a second time. The obstetrician arrived about 18 minutes after the initial FHR deceleration started. About 42 minutes after the FHR dropped, the infant was born by emergency cesarean delivery. She was diagnosed with spastic quadriplegic cerebral palsy and now uses a wheelchair and has severe speech deficits and developmental delays.

The woman sued those involved with the labor and delivery, alleging delay in performing the cesarean. She claimed that the doctor performed a vaginal examination and the same maneuvers the nurses had tried, and that she called for the emergency cesarean 15 minutes after she arrived. The woman contended that the physician should have been summoned after 2 minutes, when the first emergency call bell was sounded.

The obstetrician argued that she came when summoned and made the decision for emergent cesarean within about 5 minutes, but the hospital could not get the surgical team together for about 15 more minutes. At the conclusion of the plaintiff’s case, the obstetrician was let out and the case proceeded against the hospital. The hospital claimed that the nurses had responded properly and in a timely manner and that the doctor had not called for the cesarean for an additional 17 minutes.

The verdict

A $32.8 million verdict was returned.



Vacuum delivery blamed for anoxic brain injury

A 24-year-old Illinois woman went into labor at term in 2006. Oxytocin was used to augment the labor and after about 12 hours, the nurse-midwife determined that a vacuum-assisted delivery was necessary. The physician arrived and a vacuum was used to deliver the fetal head. The umbilical cord was noted to be loosely wrapped around the neck with a portion of it squeezed between the shoulders and the vaginal opening. Maneuvers were utilized to deliver the rest of the fetus within 5 minutes. The infant required resuscitation and was in the neonatal intensive care unit for almost a month suffering from hypoxic/anoxic brain injury and was subsequently diagnosed with cerebral palsy. The child now requires 24-hour care and is nonverbal.

The parents sued those involved with the delivery, claiming that the nurses were not properly trained and that the physician failed to properly assess the patient and fetus before attempting the vacuum delivery.

The defense claimed that the infant had suffered oxygen deprivation that had occurred prior to labor and delivery.

The verdict

A $5 million settlement was reached, with the hospital contributing $4 million and the doctor contributing $1 million.

Click here for more Legally Speaking


Failure to properly monitor woman with known placenta previa and vaginal bleeding

A Massachusetts woman was pregnant with her first child in 2009. She was diagnosed with a complete placenta previa, and a cesarean delivery was scheduled for approximately 36 weeks’ gestation. Prior to the scheduled date, the patient developed vaginal bleeding and was admitted to a hospital for evaluation. The obstetrician covering for her physician was notified of the patient’s arrival within 15 minutes, but did not arrive to see the patient for 2 1/2 hours. After the doctor examined the patient, she was transferred to the obstetrical floor for observation and to await an ultrasound evaluation. The nursing notes indicate the FHR was 120 bpm, but there are no notes from the obstetrician at that time. There is no record of the FHR at the time the patient was transferred to the radiology department for the ultrasound, where a fetal demise was found with a large extraovular hematoma. The diagnosis of fetal demise from placental abruption was made and the fetus was delivered by cesarean.

In the lawsuit the patient alleged inadequate evaluation and monitoring, which led to the fetal demise. She claimed that proper monitoring would have resulted in a delivery while the fetus was still alive.

The verdict

After discovery was concluded, a settlement of $495,000 was reached for the patient.



Postoperative abscess causes complications

A Pennsylvania woman was 78 years old when she was referred to a urogynecologist in 2009 for a vaginal bulge that had worsened over the past year. She told the physician that the bulge was very bothersome, but she had minimal urinary symptoms and no complaints of fecal incontinence. A diagnosis was made of Stage III utero-vaginal prolapse with no evidence of urinary incontinence, and because the patient wanted to preserve her ability to engage in sexual activity, she chose to undergo levator myorrhaphy. Three months later she underwent the procedure, which included a total vaginal hysterectomy, colpectomy,  and removal of ureteral stents that were part of a failed conservative treatment. The patient was hospitalized for 2 days and had complaints of some mild dizziness that resolved after narcotic medication was discontinued. She was discharged with instructions to self-catheterize and seek treatment if she had fever, chills, night sweats, nausea, vomiting, or diarrhea, and to follow up in 4 weeks.

Five days after discharge the patient went to her family physician, who ordered an x-ray that revealed a possible pelvic abscess. A computed tomography (CT) scan performed a few days later was interpreted as showing a pelvic abscess. Her physician contacted the urogynecologist who had performed the operation and faxed reports to her. The urogynecologist felt the scan more likely showed a benign collection of postoperative fluid. She examined the patient the next day and found no complaints of increased pain, vaginal bleeding, or discharge. She instructed the patient to discontinue ibuprofen and prescribed oral antibiotics in the event it was an abscess. The patient continued to have intermittent fever, worsening vaginal discharge, inability to void, pain, nausea and vomiting, and she claimed she informed the surgeon of these symptoms. She then contacted her family physician, who told her to go to an emergency room. She was admitted and then transferred to another hospital with a colovesicular fistula causing fecal matter to drain into the bladder with persistent urinary sepsis and malnutrition. The patient underwent an ileostomy, which was reversed about 6 months later, and repair of a hernia.

The woman sued the urogynecologist, alleging negligence in her failure to recognize and diagnose the abscess in a timely manner. She contended that her symptoms should have resulted in a rehospitalization and another CT scan to determine if the abscess was resolving.

The physician claimed the patient developed a late-onset pelvic abscess and did not have clinical symptoms suggestive of one at the time she examined her. She also claimed the woman was seen by other physicians during that time and they had no suspicion of an ongoing problem, and when she did develop worsening symptoms she sought treatment with other providers. She argued that the area interpreted as an abscess in the original CT was actually a bulge or pouch created by the surgery and that the radiologist was unfamiliar with the procedure performed. 

The verdict

A defense verdict was returned.

Click here for more Legally Speaking


Brachial plexus injury after Zavanelli maneuver and cesarean delivery

An Alabama woman went to the hospital in 2004 for an elective induction of labor at 38 weeks and 5 days’ gestation. It was the following day before labor progressed far enough for the patient to begin pushing. After an hour of pushing the patient was exhausted and had a low-grade fever and the FHR was slowing so the obstetrician attempted a vacuum extraction with a midline episiotomy. A shoulder dystocia was encountered and the physician utilized standard maneuvers to relieve it but was unsuccessful. Another obstetrician was called to assist and after unsuccessfully repeating the maneuvers done by the first physician the doctors decided to perform a Zavanelli maneuver and cesarean delivery. After the cesarean the newborn was sent to the NICU, where her breathing quickly normalized without the use of supplemental oxygen. The mother and infant were discharged home 5 days after delivery. Two weeks later the mother was seen by her obstetrician for a postpartum visit. She was doing well but the infant had suffered a brachial plexus injury.

The patient sued the delivering obstetrician, claiming that she should have performed a cesarean delivery earlier and that she used excessive traction on the head in attempting to deliver the shoulders.

The physician argued that her actions saved the baby’s life and prevented more serious injury to the mother and infant.

The verdict

A defense verdict was returned.



Fetal lacerations during cesarean delivery 

A 39-year-old Illinois woman was admitted to a hospital with preterm labor at 34 weeks’ gestation in 2006. An ultrasound showed the fetus was in a double footling breech position. A cesarean delivery became necessary due to the preterm labor, fetal position, and previous cesarean delivery. The obstetrician made a midline incision through the old scar and then made a low transverse incision on the uterus with a scalpel. The uterine wall was thick due to scar tissue and early preterm labor that had not thinned the lower uterine segment.

The surgeons were not able to deliver the fetus through the low transverse incision and had to perform a T extension of the incision. This was done with bandage scissors while the obstetrician placed her free hand inside the uterus to tent it up to allow enough space to do the extension and shield the fetus from injury. After extensive manipulation, the infant was delivered and immediately handed off to a neonatologist. After the operation the obstetrician was advised by the neonatologist that the baby had sustained 2 lacerations to the ulnar side of the right wrist. The infant was airlifted to another hospital for sepsis and other medical issues. While at the second facility the newborn was examined by an orthopedic hand surgeon, who determined that the lacerations were superficial and required nothing more than suture. He saw the infant about a month later and believed that there was no significance to the wrist injury. When the child began preschool, she started to complain of cold intolerance in her right hand as well as endurance issues while coloring and writing. She was referred to a pediatric neurologist, who found no nerve damage and ordered occupational therapy.

The woman sued the obstetrician, claiming she failed to adequately shield the fetus during the T extension of the incision and that the injury occurred during this extension because the arm would not have been in the area of the low transverse incision based on the fetal position. Shortly before trial, when the child was 7 years old, the original hand surgeon performed an evaluation and found that the flexor carpi ulnaris tendon had been completely severed, with a partial injury to the ulnar nerve. He recommended a return at age 14 for full assessment of the wrist injury. The mother claimed that the child’s weakness and endurance problems would increase with age, preventing her from pursuing certain occupations.

The obstetrician denied any negligence in making either uterine incision, and contended that all possible precautions to protect the fetus had been performed.

The verdict

A defense verdict was returned. 

Related Videos
Unveiling gender disparities in medicine | Image Credit:
John Stanley, MD
Related Content
© 2024 MJH Life Sciences

All rights reserved.