Tracers, counts help defense in retained foreign object cases

April 1, 2013

These cases are interesting in that they were both defense verdicts and the issues were proving when the retained foreign object was left in the abdomen and what the object was.

Retained foreign object following repeat cesarean

A Virginia woman underwent a repeat cesarean delivery in 2006. The operation was complicated by a left uterine artery laceration, which was repaired. All sponge and needle counts were correct before the abdomen was closed. More than 3 years later the woman developed severe abdominal pain. An emergency exploratory laparotomy revealed massive pelvic-abdominal adhesions. Surgeons also found a 6 cm x 6 cm mass encased by omentum and adhered to a loop of small bowel, part of the cecum, appendix, and right fallopian tube.

During removal the mass opened and a laparotomy pad was found inside. The patient developed sepsis, hypotension, tachycardia, peritonitis, and acute respiratory distress syndrome. A year later she underwent a laparoscopic incisional hernia repair with mesh. After this surgery she was readmitted to the hospital with difficulty breathing and was diagnosed with postoperative pneumonia. Two years later she underwent a second hernia repair, which she claimed she had delayed due to her fear of surgery and complications, and she continued to have abdominal pain and limitation of her activities.

The woman sued the original obstetrician, claiming the laparotomy pad was left behind during the cesarean and that the physician failed to ensure that the sponge count was accurate. She also argued that if the laparotomy pad was left during an earlier operation the defendant obstetrician was negligent in failing to perform a proper intraoperative examination of the abdomen during the cesarean.

The physician claimed that the sponge count was reported as correct by the operating room staff and he properly relied on that information, and that there was no requirement for him to find a laparotomy pad left behind during a prior operation. A defense verdict was returned.

Claim of retained laparotomy pad

A California woman underwent an exploratory laparotomy in 2003. This was performed by her gynecologist, who had been involved with her 5 previous surgeries, including 2 cesareans and a hysterectomy. She had suffered from pain from severe adhesions, and her physician recommended the laparotomy to reduce the adhesions and to prevent future adhesions with placement of Gore-Tex mesh. Seven years later, the patient began having epigastric pain. Because of insurance changes she went to a different physician. This doctor ordered a CT scan that identified a foreign body encapsulated in scar tissue in her lower abdomen. The patient went to a surgeon, who decided to remove the foreign body.

The patient sued her original gynecologist and the hospital, claiming they were negligent in leaving a laparotomy pad in her abdomen in 2003.

The defense argued that the object removed in 2010 was not a retained laparotomy pad. He contended that the object was actually the mesh placed in 2003 and that it became encapsulated in scar tissue due to the patient’s propensity to develop adhesions and that the mesh then migrated within her abdomen. A defense verdict was returned.

Legal perspective

A retained foreign object (RFO) after a surgical procedure is negligence per se, of course, as has been addressed many times in previous Legally Speaking columns and other pieces in this magazine. Often the negligence is admitted and the dispute in a subsequent malpractice case is over the amount of damages claimed for the reoperation or complications from the RFO, and any long-term injury that is shown to be related to it.

These cases are interesting in that they were both defense verdicts and the issues were proving when the RFO was left in the abdomen and what the object was. In the first case, because the patient had a previous cesarean, she could not show that the physician and hospital sued actually left the laparotomy pad during the procedure they performed, and she did not convince the jury that if they did not leave it, there was a duty to find one left during a previous surgery. Because the sponge and needle count were correct, the jury found for the defense.

In the second case, the defense showed that laparotomy pads have radiopaque tracers. A CT scan done 5 days after the laparotomy in 2003 detected no tracer, and a 2010 CT scan also did not show any radiopaque tracer. The RFO was more likely the mesh that was inserted and purposefully left in the abdomen in 2003.

Delivery to diabetic patient complicated by shoulder dystocia

A 23-year-old Maryland woman was 38 and 6/7 weeks’ gestation when she went to a hospital with contractions in 2008. She previously had a term vaginal delivery. She developed type 2 diabetes before her pregnancy. Her admitting glucose was 143, she was noted to have a 25-lb weight gain, a fundal height of 40 cm, and estimated fetal weight of 8 lb, 13 oz. A pelvic exam indicated the cervix was 3- to 4-cm dilated and 100% effaced and the baby was at -1 station. Oxytocin was started to augment labor and the obstetrician noted a reassuring fetal heart rate (FHR).

Because of the patient’s diabetes and suspected macrosomia, a pediatrician attended the delivery. A shoulder dystocia was encountered and the infant was delivered using several maneuvers after about 40 seconds. The patient sustained a second-degree perineal laceration. The infant had Apgar scores of 5 and 9, and weighed 10 lb, 2 oz. The infant was diagnosed with a brachial plexus injury and underwent surgery that found a combination of an avulsion injury and rupture of C5 and C6. Despite nerve grafts she has a significant functional disability in the affected arm. Settlement discussions between the parties resulted in a $1.475 million settlement for the child.

Bowel perforation following removal of pelvic mass

A 58-year-old Virginia woman was admitted to a hospital in 2009 for an exploratory laparotomy for removal of a pelvic mass and a left salpingo-oophorectomy. The operating gynecologist encountered extensive adhesions during the procedure, including an adhesion of the large pelvic mass to the pelvic sidewall. He also had difficulty visualizing all the mass, had to use blind blunt dissection at certain points during the surgery, and found it difficult to remove the mass through the incision.

On the second postoperative day the patient complained of shortness of breath (SOB), intermittent chest pain, and a temperature of 103°. The next day she continued to have SOB and was unable to walk. CT scans ruled out a deep vein thrombosis or pulmonary embolism, but did show the patient’s lung volumes were significantly decreased from preoperative levels. She continued to have SOB and temperature spikes for the next 3 days and was discharged on day 7 post-op despite SOB. Two days after discharge she experienced severe abdominal pain and continued SOB and was brought back to the hospital via ambulance. A CT scan then revealed free air in the pelvis, ascites, and extensive inflammatory changes likely due to bowel perforation.

The patient was intubated and emergently air-lifted to a regional trauma center for treatment. An exploratory laparotomy found a liter of fecal fluid and a perforation at the recto-sigmoid junction, which was repaired. A colostomy was performed. The patient was in the intensive care unit for 5 days and developed renal failure, required blood transfusions, and was hospitalized for 19 days. She had extensive home care after discharge. The colostomy was reversed about 5 months later and the patient had complications that required 6 days of hospitalization. A lawsuit was filed against the gynecologist and a settlement was reached for $600,000.

Brachial plexus injury

A Nebraska woman was pregnant in 2008 and had an ultrasound near term that estimated fetal weight to be almost 10 lb. A week later she was admitted for induction of labor. A shoulder dystocia occurred during delivery and the infant weighed 9 lb, 12 oz at birth. The infant was diagnosed with a strained C5 disc; ruptured C6, C8, and T1 discs; and an avulsion of C7. A nerve-grafting surgery was performed when the infant was 2 months old, but one arm remains shorter than the other with limited range of motion.

The patient sued the obstetrician and hospital involved with the delivery, claiming that the shoulder dystocia was mismanaged and resulted in the injury.

The defense argued that the shoulder dystocia was managed appropriately with the proper maneuvers and denied any fault in causing the injuries. A defense verdict was returned.

Claim of improper use of misoprostol for induction

An Ohio woman was admitted to the hospital at 34 weeks’ gestation in 2007. She was suffering from nausea, abdominal pain, and uterine contractions. She had a history of gestational diabetes, hypertension, and proteinuria, and was diagnosed with preeclampsia. On admission, the obstetrician decided to induce labor if the patient did not go into labor on her own.

The following day misoprostol was administered vaginally. The patient’s labor continued into the next morning, when a sudden loss of FHR tracing occurred. An electrode placed almost 20 minutes later showed fetal distress. The obstetrician attempted a vacuum extraction but was not successful and an emergency cesarean delivery was performed. A ruptured uterus was discovered and a hysterectomy was performed due to significant bleeding. The infant was diagnosed with hypoxic ischemic encephalopathy and seizures and died 3 weeks after birth.

In the lawsuit that followed this delivery the patient claimed that misoprostol was not approved for cervical ripening or induction of labor, and has known complications including uterine rupture and maternal or fetal death. The patient also claimed that the manufacturer expressly warns it is contraindicated for use during pregnancy. She argued that she was not informed of the potential adverse effects or provided another option for induction or cesarean. She further claimed that the nurses failed to properly monitor the fetus and recognize signs of fetal hypoxia or uterine rupture and failed to summon a physician in a timely manner in response to the FHR tracing.

The defense claimed that the patient did receive and sign an informed consent for induction. They argued that the FHR tracing was properly monitored and the emergency cesarean delivery was performed in a timely manner. A defense verdict was returned.


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