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Court of Appeals Issues Opinion in Retained Sponge Case

Last week, the North Carolina Court of Appeals issued an opinion in a medical malpractice case which involved a sponge left in a patient after surgery. In Nicholson v. Thom, the patient went to the defendant doctor for a surgery to have a cancerous tumor removed from her rectum in June 2005. After the surgery, the patient was to receive chemotherapy and radiation, but as this treatment was beginning, the patient got unusually sick with nausea and diarrhea. She was readmitted to the hospital because she became very weak, couldn’t eat, and had problems with her electrolytes.

More than two months after her surgery, an X-ray was performed which showed a retained sponge in her abdomen. A week later, a second surgery was performed and the sponge was removed. This second surgery showed that "there was a perforation of the bowel [and] the [retained sponge] was contaminated with intestinal contents. There was an abscess around [the sponge and] dense adhesions all the way around." Because of “the amount of infection that was present,” the surgeon did not close the skin around the abdominal wall after this second surgery.

Over the next five months, the patient underwent several additional surgeries to address the infection and scar tissue resulting from the sponge left in the patient’s abdomen. As a result, the patient was not able to complete her chemotherapy and radiation treatments. In July 2006, the patient’s cancer metastasized to her brain, and later that year she died from the cancer. The patient spent the time from August 2005 until her death in a hospital bed.

The patient’s husband filed a complaint alleging that the defendant doctor negligently failed to remove the surgical sponge from his wife’s abdomen, and that this negligence directly and proximately caused damage in the form of medical bills, additional surgeries, scarring and disfigurement, 401 days spent in the hospital, and a shorter life expectancy from the inability to complete the cancer treatment.

During discovery, the plaintiff found out that the defendant doctor had suffered a “disability” in her left arm in the middle of August 2005. The plaintiff served another set of interrogatories regarding the details of this disability, including a request for the defendant’s medical records. The defendant argued that these documents were protected by physician-patient privilege, but the trial court judge granted the plaintiff’s motion to compel. The defendant appealed this issue to the court of appeals, and in 2011, the court of appeals confirmed the trial court’s order because although the documents were protected under physician-patient privilege, “the potential relevance of the information contained in the disputed records” was “necessary to serve the proper administration of justice.”

Following the court of appeals 2011 ruling on the case, the plaintiff issued another request for the production of documents, as well as many subpoenas, dealing with the defendant’s medical records. The trial court allowed certain of the documents to be produced to the plaintiff. In October 2012, the trial court entered a judgment against the defendant in the amount of $4,650,000. The defendant appealed.

On appeal, one of the issues that the defendant argued was that the trial court erred in allowing the plaintiff’s counsel “to question her about information contained in Defendant's medical and pharmaceutical records as well as the sealed affidavits she provided to the trial court in 2010 because such information was not relevant and was ‘highly prejudicial’ in nature.”

The court noted that the case was tried under the doctrine of res ipsa loquitor, which literally means “the thing speaks for itself.” Typically, medical malpractice complaints must contain a Rule 9(j) certification from a person reasonably expected to qualify as an expert certifying that that person has reviewed the complaint and that the defendant has failed to comply with the applicable standard of care. Res ipsa loquitor applies when the facts by their very nature raise the presumption of negligence. The court summarized the application of the doctrine as follows:

Uniformly, in this and other courts, res ipsa loquitur has been applied to instances where foreign bodies, such as sponges . . . , are introduced into the patient's body during surgical operations and left there.

. . . .

. . . [T]he well-settled law in this jurisdiction is and has been that a surgeon is under a duty to remove all harmful and unnecessary foreign objects at the completion of the operation. Thus the presence of a foreign object raises an inference of a lack of due care. When a surgeon relies upon nurses or other attendants for accuracy in the removal of sponges from the body of his patient, he does so at his peril. . . .

. . . .

. . . The application of res ipsa loquitur allows the issue of whether [the] defendant has complied with the statutory standard to be submitted to the jury for its determination. Although the application of the doctrine requires the submission of the issue to the jury, the burden remains upon the plaintiff to satisfy the jury that the defendant has failed to comply with the statutory standard. [The d]efendant's evidence that he complied with the statutory standard does not remove the case from the jury's determination. As the trier of the facts, the jury remains free to accept or reject the testimony of [the] defendant's witnesses.

The questions asked at trial regarding the defendant’s impairment involved the defendant’s use of narcotic and non-narcotic painkillers. The court concluded that

The questions asked by counsel for Plaintiff sought to elicit and did elicit relevant testimony. Whether Defendant was using pain medication in the period of time leading up to and during the surgery addresses whether she may have breached her duty of care during the surgery. As Defendant admitted, the side effects from some of her medications "might" have had an effect on a doctor's capabilities. Moreover, the extent to which those same medications may have caused Defendant to experience confusion and impairment of cognitive function at a later point in time is relevant to whether those admittedly appreciable side effects occurred prior to and during the surgery.

The court held that the issue of the defendant’s impairment was relevant because the plaintiff had the burden of showing not only that the sponge was left in the patient’s body but also “that Defendant failed to comply with her duty of care in allowing the sponge to be left in the decedent's body.” Therefore, the trial court did not err in allowing these questions to be asked of the defendant.

If you have been injured as a result of medical malpractice, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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