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Legally Speaking: Retained sponge after cesarean delivery

An Ohio woman had a cesarean delivery in 2007 and was later diagnosed with a foreign body in her abdomen.

Three months later, she was diagnosed with a foreign body in her abdomen and was admitted for a laparotomy for removal of a surgical sponge left at the time of the cesarean delivery. The physician performing the operation described dense adhesions between the sponge and the surrounding small bowel loops in his operative note. A $275,000 settlement was reached in presuit mediation.

LEGAL PERSPECTIVE Retained sponges or other surgical instruments after an operation are, of course, below the standard of care and so technically constitute negligence. The issues then become the timely recognition of the problem and its appropriate management.

Although the case report in this instance does not so state, it is assumed that the instrument and sponge count was reported as correct at the time of the operation, which often means that the hospital is responsible for payment of damages.

If possible, as in this instance, it is a good idea to resolve these cases before a lawsuit is actually filed, if the parties can agree to a reasonable amount for the damages to be paid to the patient.

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