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: A jury awarded a woman $10.5 million after hospital staff failed to remove a sponge after surgery and failed to inform the patient of the sponge when it was discovered. According to the hospital’s procedural rules, staff were required to count sponges at the beginning and end of each procedure. However, during this patient’s surgery, this standard was not followed, possibly because the surgeon accidentally cut one of the patient’s veins and several sponges were used to repair the damage.

The sponge eroded into the patient’s intestines and remained in the patient’s body for five years, causing significant injuries. Following a trial, a jury awarded the patient $10.5 million for her pain and suffering. Liability was divided among the hospital, the surgeon, and physicians who initially discovered the sponge but failed to inform the patient.

Background: A 54-year-old patient who suffered from diabetes entered the hospital in 2011 to undergo heart surgery. During the surgery, the operating physician accidentally cut a vein near the patient’s kidney. Due to the severe blood loss, the hospital’s staff used 12×12-inch surgical sponges. The procedure was completed successfully; however, the patient suffered from gastrointestinal problems shortly after the surgery.

On March 23, 2015, the patient presented to the ED complaining of severe abdominal pain, nausea, vomiting, and diarrhea. A CT scan of the patient’s abdomen and pelvis revealed a metallic sponge inside her intestines. Physicians discovered one of the sponges used during the 2011 heart surgery was left inside the patient, and slowly eroded into her intestines, causing her discomfort and gastrointestinal problems. Although the radiologist who performed the CT scan informed the physicians of the presence of the metallic sponge marker, the information was not relayed to the patient, who was discharged with a prescription for anti-nausea medication. The patient’s symptoms did not subside. Throughout her follow-up visits with physicians, the patient was not informed about the presence of the sponge.

In late November 2016, the patient was rushed to the hospital in an ambulance complaining of severe pain, vomiting, and diarrhea. Nineteen months after the initial discovery, the sponge was finally surgically removed, although it had migrated further into the patient’s intestines. The patient’s recovery required extended bed rest and immobility, during which she developed wounds on her feet. Such wounds, paired with her diabetes and worsened by her lack of movement, eventually developed into ulcers. Due to the severity of the injuries, physicians performed a below-the-knee amputation on her left leg. Throughout the five-year period during which the sponge remained in the patient’s body, she experienced gastrointestinal issues, including pain from the sponge partially obstructing her intestines. Furthermore, as a consequence of her recovery from the surgery, the patient developed ulcers on her feet which necessitated amputation of the patient’s left leg.

The patient filed a medical malpractice lawsuit against the hospital, surgeon, and the physicians who discovered the sponge but failed to timely notify her. The patient alleged the care she received fell below the applicable standard of care, and caused her prolonged pain and suffering, including the amputation of her leg. Specifically, the patient alleged the hospital staff was negligent by not adhering to the proper procedure, which required counting sponges before and after surgery. Additionally, the patient claimed the radiologist and the physician violated the applicable standard of care by failing to inform the patient of the sponge after the first CT scan was performed in 2015, which caused the patient’s injuries to significantly increase.

The defendants denied liability, and argued the amputation was inevitable due to the patient’s worsening diabetes, obesity, former smoking history, and overall poor health. After a two-week trial, a jury found that all the defendants were negligent, and awarded the patient with $10.5 million. The jury apportioned 60% liability to the hospital, 15% to the physician who failed to inform the patient about the sponge, 15% to the healthcare center at which she recovered in 2016, and 10% to the initial surgeon who performed the heart surgery.

What this means to you: Several instances in this unfortunate matter indicate care that fell below the applicable standard. During the initial surgery, the physician’s inadvertent cutting of the patient’s vein caused the series of events that resulted in the patient’s pain, suffering, and leg amputation. The patient’s arguments were supported by strong evidence, including signed medical records that revealed at least two physicians knew about the sponge in 2015 after the first CT scan was performed, as well as written hospital policy instructing staff how to count medical tools, including sponges, at the beginning and end of each procedure.

The facts of the case left little doubt as to whether hospital staff had violated their duty of care. In addition to the ethical requirement to tell the patient about the retained sponge, there is a licensing and regulatory requirement as well. Had a sponge count been performed, the staff would have immediately discovered the discrepancy before closing, and the missing sponge could have been located and promptly removed. A portable X-ray would have facilitated prompt removal, and prevented any injury. At that time, or when the first X-ray was read when the sponge was noticed, the care provider who discovered the sponge was obligated to raise the issue and pursue it as an “adverse event” to be dealt with according to the hospital’s policy and in coordination with applicable risk management and peer review procedures. The policy would require notification to the patient or patient’s surrogates. The behavior of the hospital administration, operating room staff, chief of surgery, chief of staff, and medical staff caring for the patient all participated in inadequate care resulting in litigation that probably could have been avoided if the proper procedures were followed.

Unsurprisingly, the defendants could not present any compelling arguments that would justify or explain leaving a surgical sponge inside a patient’s body, and subsequently failing to disclose its presence to the patient for almost two years after its initial discovery. The defendants tried to argue the loss of the patient’s left leg was not a consequence of botched surgery and sponge removal procedure, but an inevitable consequence that was linked to the patient’s poor health and worsening diabetes. Thus, according to the defendants, the alleged malpractice and substandard care had not caused any permanent damage in the patient since the sponge was removed in 2016.

However, the plaintiff explained that under the “eggshell plaintiff” theory, physicians and care providers take the patient “as she comes,” meaning that any consequences that stem from a patient’s pre-existing condition, if linked to the alleged malpractice, are considered for the damage calculations and become the responsibility of the defendants. This is a difficult situation for physicians and care providers because it may be possible to argue the patient’s harm was caused by other factors — including the patient’s own fault or from other serious medical conditions — but such arguments are not always successful.

Causation is a necessary element of medical malpractice cases, and a viable option for physicians and care providers to challenge as part of defending malpractice actions. In this case, the main question faced by the jury was whether the leg amputation had been caused by the patient’s lack of mobility during her recovery from surgery or, as the defendants argued, was a separate issue caused solely by the patient’s diabetes. As argued by the patient, although her diabetes certainly contributed to the development of the cuts and ulcers, if she was not bedbound to recover from the sponge-removal procedure, she would have avoided developing those cuts and ulcers — or at a minimum, the injuries would not have become infected, and would have healed easier. A successful medical malpractice defense is entirely dependent on the facts and circumstances for that specific case. Physicians and care providers should work closely with counsel and experts to evaluate the particular aspects of the patient’s case susceptible to challenge, including causation.


Decided on Dec. 30, 2019, in the Circuit Court for Jefferson County, Kentucky, Case Number 17-CI-002453.