Legal Review & Commentary: No removal of sponge nets $375,000 judgment
Legal Review & Commentary
No removal of sponge nets $375,000 judgment
Doctors are cleared of fault
News: An 85-year-old woman underwent surgery for an aortofemoral bypass at a local medical center in 2004. In the four years following the surgery, the patient suffered from periodic severe abdominal and back pain, a foul odor coming from her body, weakness, lightheadedness, dizziness, loss of appetite, and nausea. In late 2008, the patient was admitted to the hospital with severe abdominal pain and a foul odor coming from her body. A CT scan revealed a mass near the patient's colon that was later identified as an old surgical sponge. A jury verdict was entered against the hospital, and the doctors who performed the surgery were cleared of fault.
Background: Prior to undergoing an aortofemoral bypass surgery in 2004, the 85-year-old woman was working part-time, living independently, driving herself to work, and taking trips with friends and members of her family. After the surgery, the patient reported periodic episodes of pain in her back and the lower left quadrant of her abdomen over the next four years. The patient also reported that at times she experienced weakness, lightheadedness, nausea, and loss of appetite. Her symptoms resolved when treated with antibiotics.
In December 2008, the patient was admitted to the same hospital with acute abdominal pain and a foul odor coming from her body. A CT scan revealed a mass near her colon. The patient underwent laparoscopic surgery to remove the mass, which was later identified as an old laparotomy pad. It was determined that the surgical staff members and the surgeons failed to remove the sponge and that they failed to conduct an accurate sponge count following her surgical procedure in 2004.
The patient eventually made a full recovery after her second surgical procedure. Immediately following the surgery, she was dependent on her daughter and was unable to return to her home for several months. She also returned to her part-time employment and regained independence in activities of daily living (ADL).
The patient filed a civil suit against the medical center and the surgeons alleging negligence and malpractice. Specifically, the patient claimed that the hospital's employees negligently failed to remove the surgical sponge and conduct a sponge count. The defendant argued that the hospital's staff met the standard of care, except when performing the sponge count. Expert witnesses for the patient and the doctors were called at trial. The experts disagreed as to how much responsibility the doctors had for the sponge count.
Initial offers to settle the case failed. The hospital first refused the patient's offer to settle for $250,000. The hospital then made an offer of judgment for $50,000. It claimed that the patient's routine recovery and her ability to return to work were evidence that she did not suffer significant damages. The parties also attempted mediation. All attempts at negotiation failed, and the case was presented to a jury.
The amount of damages was left up to the jury to decide. The patient's attorney did not ask for any particular dollar amount at closing. The patient's medical bills for her additional surgery already were paid by the hospital, and she did not lose a substantial amount of income during her recovery. After three to four hours of deliberation, the jury returned a verdict of $375,000 against the hospital and found that the surgeons were not at fault. The hospital has since filed a motion for a new trial based on the "excessiveness of the verdict."
What this means for you: Retained surgical objects reflect serious health risks for patients and severe financial, quality, and reputational risks for healthcare providers. This case is interesting from several perspectives: the patient's, the hospital's, the surgeons', the attorneys, the patient outcome, best practices, accountability, and risk management. It encompasses several areas of risk management concerns, including but not limited to, policy, procedure, and regulatory compliance, culpability, and claims management. The judgment rendered in this case is fascinating because the end result could have been more costly had the patient's ultimate outcome been less than satisfactory. It is noteworthy that the hospital has filed a new trial motion related to an "excessive" verdict. It is our opinion the hospital should consider the verdict to be reasonable based on a positive outcome in an elderly patient, an outcome that had the costly potential for permanent harm or even sepsis-related death. It is curious the surgeons were not held accountable or responsible in light of the patient safety requirements and initiatives in position today. I can only surmise the physicians involved in this case were not informed of an incorrect count at the time of the event.
The American College of Surgeons (ACS), in their Statement on the Prevention of Retained Foreign Bodies after Surgery, "recognizes patient safety as being an item of the highest priority and strongly urges individual hospitals and healthcare organizations to take all reasonable measures to prevent the retention of foreign bodies in the surgical wound." The ACS offers guidelines to various practice settings for the prevention of retained foreign bodies and recommends "performance of a methodical wound exploration before closure of the surgical site." This recommendation is not only for the healthcare organization but for those individuals who comprise the surgical team and who serve as the last line of defense for the patient.
"Nothing Left Behind," a national initiative conceived in 2004 and implemented in January 2005, provides tools and guidelines to improve processes of care in handling surgical instruments, needles, and sponges to prevent the retention of foreign bodies post surgical or invasive procedures. Achieving a goal of nothing left behind requires team commitment of accountability and responsibility for anesthesiologists, surgeons, nurses, surgical techs, radiologists, and the healthcare organization's leadership. It requires, per the initiative, "good communication among perioperative personnel and the consistent application of standardized processes of care," such as clear and concise sponge count policies that apply not only to staff nurses and scrub technicians but to the behavior of surgeons, anesthesiologists, and radiologists as well. Without commitment to the nothing left behind campaign, surgical foreign bodies will continue to be retained postoperatively, will continue to harm those who trust in our provision of and dedication to safe care, and will prove costly to the healthcare provider(s).
In 2007 the Institute for Clinical Systems Improvement (ICSI) published an extensive health care protocol for the Prevention of Unintentionally Retained Foreign Objects in Surgery that aligns with the recommendations of the ACS and Nothing Left Behind initiative, as well as AORN guidelines. It holds all team members and the organization accountable. Although the jury did not find the surgeons responsible, it would be prudent for the hospital, as a long-term risk reduction strategy, to hold the surgeons accountable. They are part of the team providing the care and who are responsible for recognizing and supporting patient safety as the highest priority. It is disconcerting to learn an 85-year-old woman experienced pain and a foul odor for four years, not to mention being treated and placed at risk for chronic infection, because due diligence was not initially performed by those she trusted to heal her. It is fortunate for the organization that this patient's eventual outcome was one of temporary, not permanent harm.
The claims management of this case is also of interest. The hospital clearly evaluated this case as low risk, as evidenced by its perception of minimal and temporary patient harm, a positive patient outcome, and its refusal to settle at mediation for $250,000, which mean taking a chance on a jury verdict. Its offer to settle at $50,000 made it clear to the plaintiff that leaving a sponge behind, while not causing permanent harm, placed little value on her health status during the four post-op years that the laparotomy pad remained "left behind." Although the hospital covered all medical costs, clearly the jury was sympathetic and held the hospital responsible for its care practices and policies. It is remarkable the trial experts disagreed as to physician (surgeon, anesthesiologist, radiologist) responsibility for sponge count. Why would a physician wish to be placed at personal litigation risk for not accepting team member responsibility for correct surgical counts? It is the physician who performs the methodical wound exploration when a surgical count is deemed incorrect.
Currently, healthcare consumers (including those who serve as members of the jury) continue to receive education in patient safety initiatives and regulatory compliance. Healthcare consumers are encouraged to participate in their plan of care, to speak out, speak up, and ask questions regarding their safety and well-being in all avenues of healthcare provision. Information publicly abounds regarding retained foreign objects and healthcare teams' ability to achieve a level of zero events. Clear, concise communication, compliance with surgical counts policies and procedures, and a consistent team mentality will serve to end cases such as this one and eliminate excessive verdicts. Most importantly, it will prevent patients from experiencing the event of a retained surgical object.
Reference:
State Court of Dekalb County, Georgia, No. 09A21762-6.
An 85-year-old woman underwent surgery for an aortofemoral bypass at a local medical center in 2004. In the four years following the surgery, the patient suffered from periodic severe abdominal and back pain, a foul odor coming from her body, weakness, lightheadedness, dizziness, loss of appetite, and nausea.Subscribe Now for Access
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