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Going Rate For Leaving Surgical Towel In Abdomen 6 Years: $564k
Since undergoing an abdominal hysterectomy in 1999 at Lutheran Hospital of Indiana in Fort Wayne, Sylvia Mata continued to have abdominal pain for 6 years. And it’s no wonder. A surgical towel, not a type of towel know as a “lap pad” which has a stripe of thread running through it that will show up on an x-ray, but a towel similar to one of your cheap dishtowels, which is not meant to be placed into the abdomen, because if left there it may not show up on x-ray, was. And for six years, no xray detected it.
Her bowel eventually encapsulated the towel (likely forming some adhesions, tissue growth and nasty scar tissue that wasn’t much fun to cut away so that the towel could be removed without perforating the bowel. Doctors thought she had a cancerous tumor until they opened her up and, viola’!….a towel.
Mata sued her original hysterectomy surgeon Laurette C. Robey, MD, and the hospital (another vicarious liability claim) for the the acts of the surgeon. Robey blamed the nurses, since the OR circulating and scrub nurse are responsible for counting everything that might be used inside the abdomen, like lap pads, needles, instruments, etc. If they say the count is correct, the surgeon reasonably relies on their count. The hospital blamed the doctor, since if Robey was successful in placing the blame on the nurses alone, the hospital would clearly be vicariously liable and foot the whole bill. If the nurses were of the hook and it was the doctors fault, the hospital may still have vicarious liability, but the physician would likely be at least 50% liable, or more, and the two would have to pay their share rather than the hospital paying the whole thing.
The hospital successfully countered that the towels were never intended for use in the abdomen, which is true. But in practice it is done all the time for various abdominal surgeries, though the surgeon generally makes a verbal note to the nurses so that all pay attention to the same number of towels coming out of the abdomen as went in. Robey had other GYNs testify that they used surgical towels for the same type of procedure. But even if you could get a jury to beleive the experts that using such towels was a ‘standard’ of care among them, leaving one in the patient never is….nor is it a nursing standard to count objects that are not suppose to go into the abdomen….like a surgeon’s watch.
The jury awarded Ms. Mata $564,000 in damages for pain and suffering. $110,000 per year to live 6 years with unexplained abdominal pain, be diagnosed with some sort of abdominal mass likely cancerous, and undergo a major surgery, because a surgeon left a …rather large, frankly….towel in your abdomen. Pretty cheap.
The fact that SOMEONE was liable was never an issue since this is as close as you get to the legal doctrine of ‘res ipsa loquitur’, often quoted as ‘the thing speaks for itself’ but, more accurately the Latin translation is ‘the thing itself speaks’. Meaning the fact that a surgical towel is in the abdomen for six years, needs no further explanation, as it is explanation enough looking at it sitting in the abdomen that absent negligence it could not have happened.
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[...] We recently talked about res ipsa loquitur in an offbeat and roundabout way. Now let’s take a real case from current court proceedings which relate to the fact pattern of another case we also previously discussed. [...]