Unremoved sponge: $482,000 settlement
News: Following a hysterectomy, a woman had a multitude of medical complaints. Months later, a laparotomy sponge and its remnants were discovered through additional surgeries. She settled with the hospital and obstetrician/gynecologist for $482,000.
Background: In November 1992, the woman, age 42, underwent a total abdominal hysterectomy with obliteration of the pouch of Douglas, Burch urethropexy with cystotomy, and posterior colporrhaphy. Following the surgery, she complained of headaches, hypertension that was difficult to control, chills, joint aches, abdominal pain, and tenderness with intercourse and bowel movements.
In May 1994, she was evaluated by proctosigmoidoscopy and barium enema, which revealed a band-like radiopaque foreign body in her pelvis. In June 1994, she underwent a second surgery to remove what turned out to be a laparotomy sponge. It had been there a year and a half. Her original OB/GYN performed the second surgery. Despite removing the sponge, she continued having pain in the lower abdomen, plus constipation and nausea.
A medical panel's finding
A CT scan in April 1995 revealed what was believed to be a 5 cm cyst involving the left ovary. She was referred to another OB/GYN for evaluation. That OB/GYN performed a third abdominal procedure in June 1995 to remove the suspected cyst and explore the abdomen. During the procedure, he encountered significant adhesive disease and called in a general surgeon to assist with lysis of adhesions.
The two physicians discovered an inflammatory mass in the mid-pelvis, which contained remnants of the laparoscopy sponge. The mass involved her small intestine. Accordingly, 15 inches of the small bowel were resected. The woman was subsequently diagnosed with DISH, an arthritic condition of the spine, as well as fibromyalgia.
A medical review panel found unanimously against both the defendant obstetrician/gynecologist. The hospital and defendants settled their underlying liability without the plaintiff filing suit. However, the damages were strongly contested by the medical malpractice carriers.
Although the plaintiffs ultimately could not link the DISH syndrome to retention of the foreign body, it was undisputed that the functional bowel complaints, chronic back and abdominal complaints, and development of fibomyalgia supported the claim for damages. According to a published account, the matter was settled for $482,000; the hospital paid two-thirds and the physician one-third.
What this means to you: This case presents one of the classic risk management scenarios, which usually leads to some type of settlement or judgment.
"Unfortunately, retained sponges and/or instruments continue to be a significant and often underreported medical error. Despite best practices and continuing education, our experience over the past eight years shows at least two to three cases of this a year. More often than not, these cases proceed to trial against the health facility because the physician refuses to accept any culpability and/or early settlement," says Peggy Nakamura, director of the risk management department at Adventist Health in Roseville, CA.
Given the usually indisputable evidence in such cases, it is difficult to deny that something went wrong. The items used in surgery are supposed to be properly accounted for by the surgical staff so the number used going in matches the number coming out. The only defense for the health care providers is generally based on a claim that the presence of the sponge and/or instrument does not or has not caused the patient any more harm than the underlying medical conditions.
"As a system, we are addressing this category of medical error by implementing more rigorous procedures and nursing and medical staff education," adds Nakamura.
Reference
Anonymous Patient and Husband v. Anonymous Obstetrician/Gynecologist and Anonymous Hospital, Circuit Court, Indiana.
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