HA550 Unit 2 Retained Sponge Malpractice Case Example

A Sponge Found Thirty-One Months Later: A Malpractice Liability Case Working a Composite Patient's Claim Against a Surgeon, a Circulating Nurse and a Hospital Through Res Ipsa Loquitur, the Discovery Rule, Vicarious Liability and a State Damages Cap

[Student Name]

Purdue University Global

HA550: Health Care Law and Ethics

Unit 2 Malpractice Liability Case

[Instructor Name]

[Date]

The patient, the hospital and the state are composite and bracketed for the writer's own data; the doctrines and the case cited are real, and the analysis is coursework, not legal advice.

Facts

[Date one]: emergency laparotomy for a bowel obstruction, [three] hours, with a change of plan midway when a second obstruction was found. The count record shows sponges and instruments as correct at closing. [Date two]: discharge on day [six]. Over the next [31] months, the patient reported abdominal pain at [five] clinic visits. [Date three]: a CT scan shows a retained sponge. [Date four]: a second operation removes it, along with a section of bowel.

Issue 1: Breach and Res Ipsa Loquitur

Rule. Res ipsa loquitur, "the thing speaks for itself," lets a jury infer negligence without direct proof when three conditions hold: the event does not ordinarily occur without negligence, the cause was within the defendants' control, and the patient did not contribute to it. In Ybarra v. Spangard (1944), the California Supreme Court applied the doctrine to several members of a surgical team when an unconscious patient was injured and could not say who was responsible. Application. A sponge left inside a patient is the classic example of an event that does not happen without negligence. The sponges were under the control of the surgical team, and the patient, under anesthesia, could not have contributed. All three conditions are met. Defense. The defendants will point to the count sheet, which shows a correct count. But a correct count on paper does not defeat the inference if the sponge was in fact left, because the record and the result cannot both be accurate. A case-control study of retained items linked emergency operations and midstream changes of plan, both present here, to a much higher risk, and that many retained items followed counts recorded as correct (Gawande et al., 2003). The count sheet says the count was right, and the CT scan says it was not; a jury will believe the scan.

Expert Testimony

Most malpractice claims need an expert to explain the standard of care and how the defendant fell short. Res ipsa loquitur often lets a foreign-object claim proceed without one on breach, because a lay jury can understand that a sponge should not be left behind. The patient will still need medical experts on causation and damages: that the sponge caused [31] months of pain and the bowel resection, rather than the original obstruction or adhesions from the first surgery. The defense will likely argue that some of the pain would have occurred anyway, which affects the amount of damages rather than liability.

Issue 2: Timing

Rule. A statute of limitations sets a period, often [two] years, for filing a claim. Many states start the clock when the patient discovers, or reasonably should have discovered, the injury: the discovery rule. A statute of repose, by contrast, sets an outer limit from the date of the act, regardless of discovery, though many states exempt foreign objects from repose. Application. The patient could not reasonably have known about the sponge before the scan, despite reporting pain, because clinicians did not image the abdomen. Under a discovery rule, the claim is timely if filed within [two] years of the scan. If the composite state's statute of repose is [three] years with no foreign-object exception, the claim would be barred after [36] months; at [31] months, it survives either way, but only if filed quickly.

Issue 3: Which Defendants

Surgeon. The surgeon has a personal duty to ensure that nothing is left behind, and many courts hold that the surgeon cannot fully delegate that duty to the count. Circulating nurse. The nurse has a duty under hospital policy to perform and record the count accurately. A count recorded as correct when it was not is evidence of breach. Hospital. The hospital employs the nurse and is vicariously liable for her negligence within the scope of employment, under respondeat superior. If the surgeon is an independent contractor, the hospital is not automatically liable for the surgeon, but it may face corporate liability if its counting policy or training was inadequate.

Issue 4: Damages and the Cap

Economic damages: the second operation, lost wages and future care, about [$186,000]. Noneconomic damages: [31] months of pain and the loss of a section of bowel. The composite state caps noneconomic damages in malpractice cases at [$350,000]. Economic damages are not capped. Some state courts have struck down caps under their state constitutions, so the cap's validity depends on the state.

Likely Outcome

Liability is very likely. Most claims of this kind settle; research on malpractice litigation finds that claims involving clear error and significant injury usually result in payment (Studdert et al., 2006).

What the Hospital Should Do Now

Disclose the event to the patient, apologize, report it as a sentinel event under its own policy, review the counting process and consider early settlement.

References

Gawande, A. A., Studdert, D. M., Orav, E. J., Brennan, T. A., & Zinner, M. J. (2003). Risk factors for retained instruments and sponges after surgery. New England Journal of Medicine, 348(3), 229-235. https://doi.org/10.1056/NEJMsa021721

Studdert, D. M., Mello, M. M., Gawande, A. A., Gandhi, T. K., Kachalia, A., Yoon, C., Puopolo, A. L., & Brennan, T. A. (2006). Claims, errors, and compensation payments in medical malpractice litigation. New England Journal of Medicine, 354(19), 2024-2033. https://doi.org/10.1056/NEJMsa054479

Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944).