Featured Case from Medicine On Trial, Second Edition
Written by Gordon Ownby, CAP’s Former General Counsel
In the realm of medical malpractice cases, those involving a retained foreign object have their own special place in the law.
First, the retention of a foreign object can toll the statute of limitations for bringing a medical malpractice action. That is, while a typical medical malpractice case in California must be filed within three years of a patient’s injury (or one year after the patient discovers the injury), that deadline does not apply with “the presence of a foreign body which has no therapeutic or diagnostic purpose or effect ...”
The challenge in defending the retained object allegation is the way a foreign body case shuffles the burdens among the parties. In the typical case, the plaintiff bears the burden of producing evidence to prove negligence. In a retained object case, the object “speaks for itself” (res ipsa loquitur) and it is the defendant who has the burden of producing evidence showing that leaving the object in the body was not negligence.
A 43-year-old gentleman with painful osteoarthritis of the right hip underwent a total hip arthroplasty. (The same procedure on the left had already been performed satisfactorily.)
As Dr. OS, an orthopedic surgeon, was completing surgery, one of his assistants told him that the sponge count was incorrect. Dr. OS stopped the surgery, had the nurses recount the sponges, and inspected the wound. He also ordered a portable X-ray, which a radiologist interpreted as showing no radiopaque material. Dr. OS then completed the surgery. The patient remained hospitalized.
The next morning, Dr. OS ordered another X-ray, in which the radiologist noticed a “linear opacity” near the junction of the prosthesis and the prosthetic portion of femoral head. Additional AP and lateral views confirmed that a sponge had been left in the patient.
When Dr. OS took the patient back to surgery early that afternoon, he found the sponge trapped within the acetabulum. Dr. OS was able to retrieve the sponge in a single piece. Repeat X-rays showed no foreign object remained and Dr. OS completed the surgery.
Over the next two days, the patient complained of gas and a distended abdomen, but those resolved to allow his discharge on the third day after the last surgery.
The patient visited Dr. OS in the office 10 days later. According to the patient’s account of that visit, Dr. OS’s demeanor had changed from his previous dealings. Specifically, the patient said that Dr. OS was more “serious” and “businesslike,” and that he never mentioned the retained sponge. Because of continuing knee pain, the patient consulted with his primary care provider, who referred him to a neurologist. The specialist gave the patient a prescription to help him sleep, but found the patient’s sensory and motor nerves to be normal. Three months after the surgery, the patient was diagnosed with congestive heart failure and hypertensive cardiomyopathy.
The patient sued Dr. OS and the hospital, claiming that the second surgery had caused him continuing hip and knee pain. He also contended that the additional round of general anesthesia contributed to his congestive heart failure and cardiomyopathy, though in deposition, the patient admitted that his doctors told him that his long-term smoking was more likely to blame.
The expert witness for the defense testified that Dr. OS followed every known protocol and standard practice in looking for the sponge. In the expert’s opinion, once a wound is checked and an X-ray taken, the surgeon risks infection by keeping the site open while continuing to look for an object. Dr. OS’s attorney then called a radiologist witness, who said that 75 percent of the cases in which he is called in to interpret a film for a foreign object, the object is ultimately found outside the body or never located at all.
In the end, it was determined that that Dr. OS had produced sufficient evidence to prove that he was not negligent in leaving the sponge in the patient.
Risk management experts say that when a physician confronts an unforeseen event, the doctor should tell the patient (or family) the news in clear, direct language and discuss any relevant history, facts, or strategy dealing with the situation.
In this case, there is no telling what Dr. OS could have said to prevent this patient from suing over that lost sponge. As it turned out, the surgeon showed that he took all the steps necessary to get the best result for his patient.