By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services (2004-2013)

California Hospital Medical Center

Los Angeles

Elena N. Sandell, JD

UCLA School of Law, 2018

News: An appeals court affirmed a $3.5 million verdict in favor of a patient whose left eye was removed following an infection caused by improper sterilization of surgical tools. The patient alleged that the surgical staff failed to follow proper sterilization procedures, introducing two species of bacteria to her eye. A jury found in favor of the patient and her husband and awarded $2.7 million to the patient and $470,000 to the patient’s husband.

The hospital sought a new trial after the verdict, but the court found that the patient’s expert sufficiently supported the finding of negligence. An appellate court affirmed the verdict and finding.

Background: A patient was diagnosed with a macular hole in her left eye, which caused her to suffer some vision impairment. In 2011, she underwent surgery to repair the eye; however, her eyesight worsened. The day after surgery, the patient could see only light with her left eye, although previously she could distinguish shapes and see clearly enough to count fingers. Testing revealed elevated blood pressure and a collection of white cells, referred to as hypopyon, in her eye. These white cells indicated that the patient was suffering from endophthalmitis. Although an antibiotic injection was administered directly into the woman’s eye, her condition continued to worsen. As the infection progressed, the patient’s eye sustained significant damage and was removed.

The patient and her husband sued the hospital, alleging that the hospital failed to adhere to proper sterilization procedures led to the patient’s eye infection. During trial, the patient’s expert witness testified as to the type of organisms that caused the infection, explaining that they were not “common” and should not be found in an operating room. This expert testimony supported the allegations that the hospital’s staff had not followed procedure and had failed to adequately sterilize all surgical instruments. The patient argued that the sterile technique during the preparation, and use of a bottle of balanced salt solution (BSS), had not been followed adequately. This caused two bacteria species, Pseudomonas aeruginosa and Serratia marcescens, to enter the patient’s eye and cause the infection. The hospital contended that it followed the proper procedures and argued that the patient had not shown sufficient evidence linking the physician’s conduct to the patient’s injury. The hospital specifically claimed that there was insufficient evidence and expert testimony pertaining to causation and that the trial court erred by permitting evidence about the bottle of BSS.

A jury found in favor of the patient, awarding $2.7 million to the patient and $470,000 to the patient’s husband. The defendant hospital challenged the jury’s finding by bringing two different legal procedures: a motion for judgment as a matter of law and a motion for a new trial. The trial court denied both and found that the patient’s expert sufficiently supported the finding of negligence. The defendant hospital appealed the verdict and trial court’s decisions. In its ruling, the appellate court explained that the expert’s testimony was sufficient. The expert stated that it was his opinion, to a reasonable medical certainty, that the bacteria must have been introduced due to a breach of the surgical procedure because such bacteria do not live in eye drops or makeup and because the rate at which the infection progressed suggested that the bacteria had been introduced directly into the patient’s eye during surgery. The appellate court did not find that the trial court abused its discretion or that its rulings were based on an erroneous legal standard.

What this means to you: The lessons from this case include the importance of proper sterilization, as well as the legal procedures and appeal options. In its decision, the appellate court detailed why the district court had reached the correct conclusion, how the evidence proffered by the patient was admissible, and why it constituted a sufficient factual basis for the patient’s prima facie case. The appellate court noted that the hospital did not dispute the possibility that a breach in the sterilization process had occurred; instead, the hospital focused its challenge on the fact that the patient had not presented convincing evidence demonstrating that the breach in sterilization practices had caused the infection.

This was a rational decision by the hospital. Attempting to argue that it was impossible for the sterilization procedures to have been followed is unrealistic and would undermine the hospital’s credible arguments. Maintaining sterility in surgical suites is a daunting task in every hospital and surgery center. The room itself, the surgical field, instruments, and personnel must be free of microorganisms. Pseudomonas often is the bacteria responsible for postoperative infections, especially if reusable surgical instruments are not sterilized properly. The problem frequently arises from the insufficient cleaning of the equipment in preparation for sterilization. Hospitals and other freestanding surgical facilities must ensure that staff are trained in proper techniques and that sterilization equipment is maintained and inspected frequently. Proper technique and attention is required by all persons involved.

Challenging causation in this case by arguing that the bacteria in this specific patient’s eye could have been caused by the patient’s makeup presented a better possibility for the defendant hospital. The patient allowed her makeup to be tested, and the analysis showed that the makeup was not contaminated. In response, the hospital attempted to undermine the analysis by arguing that the testing occurred five years after the incident, rendering the results unreliable.

One of the hospital’s main challenges on appeal was that the trial court improperly admitted evidence about the makeup testing because the results were irrelevant and should have been excluded. The appellate court disagreed with this contention and found that the trial court correctly admitted the evidence because the hospital introduced the issue of contamination of the makeup and the evidence was indicative of the level of care the patient generally took of her makeup. In fact, the appellate court noted that because relevancy has a low threshold for admission, the disputed evidence satisfied the basic relevancy test in that it tended to make the existence of any fact of consequence more or less likely. Furthermore, the evidence was offered to rebut an allegation introduced by the hospital and, consequently, did not require an expert witness.

The parties also disputed evidence of a photograph showing the seals used on the BSS bottles. In particular, the patient claimed that the seals used on the bottles had been contaminated by a non-sterile sticker placed on the cap and that surgical staff relied on the sticker that indicated the seal was “sterile.” During trial, evidence showed that the hospital changed the location of the sticker since the time of the incident. The hospital moved to introduce a photograph of the seals the hospital used at the time of trial, rather than a photograph of the seals used at the time of the incident. However, the trial court excluded the evidence because the packaging on the seals was different, and the photograph showed the seals in sterile packaging with the word “sterile” printed on the sticker. Because of the differences in the packaging, introducing the photograph would have been prejudicial. The district court correctly chose to exclude the evidence, according to the appellate court.

Many medical malpractice cases revolve around expert witnesses, their testimony, and their credibility. This case was no exception, as the patient’s expert witness was crucial in obtaining a favorable jury verdict. As affirmed by the appellate court, the patient’s expert provided critical, convincing testimony indicating that but for the hospital’s negligence before and during surgery, the infection-causing bacteria would not have entered the patient’s eye. The expert also explained that such aggressive types of bacteria are not normally found in products such as makeup and eye drops.

The defendant hospital could not rebut this expert testimony or provide credible proof that a breach had not occurred. In fact, as highlighted by the court, the hospital did not appeal the element of breach; they did not present evidence indicating that a breach had not occurred. Rather, the hospital focused its defense on attempting to disprove causation, a necessary element for a plaintiff. Without the causal connection, the patient’s case would have failed, regardless of the nature or extent of the patient’s injury. Unfortunately for the hospital in this case, its defense argument was unsuccessful, and the jury’s award of $3.5 million was affirmed.


Decided May 28, 2019, in the Minnesota Court of Appeals, Case Number A18-1516.