Top 25 Medical Malpractice Cases of a 25 Year Career – Retained Sponges
Medical malpractice cases are very complex.
In this series of articles BC and Alberta personal injury and medical malpractice lawyer Angela Price-Stephens describes her top 25 notable medical malpractice cases of her 25-year career to date. Her selection of cases is a representation of the breadth of her experience, the complexity of cases, the twists and turns in the evidence and the dramatic benefit to her clients and their respective families by successfully pursuing their claim with Angela and her team.
Angela has litigated cases across Canada and England and Wales. The names and distinguishing details of the cases referred to in this series of articles have been changed to protect the client. In all cases of settlement for medical malpractice the lawyers for the defendant healthcare providers insist on a confidentiality clause in which the existence of a settlement (payout of money to the former patient, irrespective of whether an admission of liability was made) must remain a secret.
In this seventh article in the series Angela reflects on the case of Eileen who suffered inexplicable prolonged healing and pain from what ought to have been a routine partial hysterectomy.
Eileen was 42 years old at the time of her partial hysterectomy. The surgical procedure was indicated for painful fibroids which had failed to reduce with conservative treatments. Eileen was an accountant and had missed increasing time from work due to her condition which had been diagnosed shortly after the birth of her second child, 12 years earlier.
The surgery was be undertaken laparoscopically. During the surgery there was hemorrhaging, or heavy bleeding, and the procedure was converted to an ‘open’ procedure whereby the abdomen was opened for the surgeon to better visualize the source of the bleeding. It became apparent that the surgeon had damaged the uterine artery and the bowel in two places. Both were repaired. During the procedure three large gauzes (or sponges) were left within the pelvic cavity.
The gauzes themselves were not a source of infection but they did provide a perfect nidus, or focus, for infection to grow and develop within Eileen’s body. When appropriate a surgeon may decide to leave sponges in place as packing with a view to removing it within 24 – 48 hours. In Eileen’s case there was no such intention. The sponges were left in the body by mistake. The sponge count undertaken by the nurses was incorrect and the surgeon had failed to find all sponges before closing the patient.
Eileen made a slow recovery from surgery. She continued to experience pelvic or abdominal pain which she found hard to describe or pinpoint. Her surgeon repeatedly reassured her that despite the complications the surgery had ended well and it would take time to recover. Eileen later gave evidence that she felt her complaints were dismissed and she was not taken seriously. The lack of explanation for her pain and unwillingness by her doctors to investigate contributed to a major depressive episode. Six months after surgery her long-term benefits provider ceased payments, despite Eileen’s inability to return to work. Ironically, her doctors opined that it was Eileen’s mental health that was causing her to perceive her pain as more debilitating than it was. The focus was then shifted to treating Eileen’s depression and developing anxiety rather than exploring the source of chronic pain.
Financially at breaking point and on the verge of divorce Eileen had practically given up hope of being pain free. During discovery Eileen admitted to taking more pain medication than prescribed and ‘enhancing’ the pain medications with alcohol.
Almost three years after the surgery Eileen fell at home, twisting her back. There was evidence she was intoxicated at the time. This fall exacerbated her pain and it was the x-ray targeting her lower back that demonstrated foreign objects within her pelvis. The sponges were finally removed but the adhesions and scar tissue which had formed remained a source of pain.
A “Never Happen” Event
There are certain events in medicine that simply should never happen. Or to put it another way, the only way it happens is through negligence – a mistake that falls below the standard expected. Leaving sponges in a patient is one of those events.
However, even when it is obvious a mistake was made it is still necessary for the injured patient to prove what and how much damage that mistake caused.
In Eileen’s case the doctors’ lawyers argued that there was always a risk adhesions may occur following surgery; there is risk of infection and post-operative chronic pain. They offset her post-operative pain and disability with the pain and disability of the pre-existing fibroids.
With careful questioning of the doctors at discovery, Angela demonstrated using their own evidence why the sponge count is crucial; what is expected to happen if a sponge (or three) is left in place and the type of pain that can cause. Using the gynaecologist’s own estimation of success against him, it was confirmed Eileen had an excellent recovery rate from her partial hysterectomy which had been described to her as a ‘routine’ surgery, were it not for the retained sponges.
Blaming the Patient
Unfortunately blaming the patient as means of defence, or deflecting the blame, is not unusual. Rarely is the patient blamed directly but in Eileen’s claim she was blamed for self-medicating with pain medications and alcohol. The breakdown of her marriage which had had its challenges prior to the surgery, was partially blamed for her depression which was used as a means to defend the length of time it took for the sponges to be found (the focus of inquiry having moved to her mental health, not physical health). With clear medical evidence and a precise chronology of events, Angela was able to illustrate all of the clinical appointments at which the source of the pain ought to have been investigated, the increasing medications prescribed, the increasing frequency at which the complaints of pain were made, the nature of the pain and the deterioration in Eileen’s ability to cope with life. Through medical evidence and evidence of friends, family and former colleagues it was clear that the depression and anxiety developed as a result of the chronic pain.
Is the Loss of a Marriage Worth Money?
Eileen’s claim included a sum for loss of her marriage, or the loss of her ability to form and sustain a financially beneficial relationship. This is a relatively unusual type of claim. It is based on the recognition that two people living together can share their common expenses and become wealthier in life more readily than someone who lives alone. It is a challenge to establish that negligent surgery caused, or contributed to, the breakdown of a marriage especially when one considers that almost 1 in 2 marriages fail in any event. However, in this case Angela was able to establish sufficient evidence from a variety of sources that placed the defendants at risk of a finding the marriage failed due to the negligent surgery and that Eileen’s injuries meant she was unlikely to establish a new permanent relationship. Angela obtained witness statements and video clips from some of Eileen’s closest friends who testified at the change in personality, levels of anger and irritability and lack of tolerance for her immediate family and loved ones exhibited by Eileen since she developed chronic pain.
Eileen’s claim was resolved for a large sum which included the loss of her lucrative career, her permanent chronic pain and the loss of her ability to form and maintain a financially inter-dependent relationship.