November case summaries (2006)

November 1, 2006
Dawn Collins, JD
Dawn Collins, JD

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

Clinical situations that typically result in litigation and the variation in jury verdicts and awards across the nation.

Retained sponge found after operation

A 36-year-old Texas woman went to her gynecologist in 2002 to request that her tubal ligation be reversed. Her physician referred her to a second gynecologist for the procedure, with which he assisted. A lap sponge rolled in plastic was inadvertently left in the patient, despite the fact that the nurses reported the sponge count as correct.

The woman reported pain while she was in the hospital and during four subsequent office visits with the operating gynecologist. A vaginal ultrasound performed in the office was negative.

The patient filed a lawsuit against the hospital, claiming negligence in leaving the sponge in her, and against the first gynecologist for failure to diagnose the retained sponge after the operation. The hospital filed a third-party action against the operating gynecologist, contending that he used a non-radiopaque, non-counted sponge. The patient then also filed a claim against the operating gynecologist. The hospital settled with the woman and dismissed its own claims against the operating physician. A confidential settlement was reached between the patient and the operating gynecologist.

Legal Perspective

A retained sponge or other instrument left during an operation obviously is below the standard of care, especially with a "correct" count. In general in such cases, it's best to settle if the parties can agree on a reasonable amount.

In this case, the hospital was named as liable for the retained sponge, since the count was reported as correct to the surgeon. The operating surgeon originally was not sued by the patient, but was named later and went on to settle his claim. The claim against the first gynecologist, however, was for failure to diagnose the retained sponge. That was based, in part, on what seemed deceptive behavior to the patient, in that the physician did not mention the retained sponge during the appointment after the CT scan. Instead, he claimed the woman had adhesions, which he wanted to surgically remove. During the trial against the gynecologist for that matter, he claimed that he did not tell the patient she could have a retained sponge because he only knew that the CT results indicated uncertainty about the identity of the mass, had not viewed the films himself, and the OR records indicated a correct sponge count. It was only when he viewed the films the day after he saw the patient that he became certain that a sponge was left. He made subsequent attempts to reach the patient, which he documented as well as her failure to respond up to the time he was told she had sought a second opinion. A defense verdict was returned for this physician.

Bladder injury during hysterectomy

A 25-year-old Kentucky woman suffered from severe pelvic pain and bleeding for years, and underwent a hysterectomy in 2002. She began having bladder problems after surgery and it was discovered that there were three sutures in her bladder. She underwent repair surgery, but continued to suffer from ongoing incontinence.

The woman sued the surgeon, claiming that the surgical record indicated that blue dye was noted coming from her bladder. She alleged that should have alerted the physician to investigate and promptly repair the bladder injury.

The gynecologist denied that any dye spilled from the bladder and argued that the surgical record had a typographical error. He admitted suturing the bladder but maintained that it was a known complication and that the injury did not immediately manifest itself. A defense verdict was returned.