Sponge Left In Patient: Malpractice Or Negligence?

When a sponge or other foriegn object is left in a patient after surgery, most jump to the conclusion that medical malpractice is involded.

That may or may not be the case. In some instances, a victim of such an incident may be able to pursue a case

sounding either in medical malpractice and ordinary negligence, or in either medical malpractice or ordinary negligence. That was the issue in this unusual case in which the courts were confronted with the issue of whether the victim of alleged malpractice (or negligence) was required to jump through all of the hoops required to pursue a case of medical malpractice. Or was it simply negligence?

Dorothy Small underwent an appendectomy performed at South Haven Community Hospital on July 27, 2004. After surgery, a count of surgical sponges showed one sponge missing. An x-ray was taken of the patient's abdomen the following day. Although the radiological report did not identify any foreign bodies, it did note that the study was "limited by technique and patient motion." The patient was discharged the day following the x-ray. The sponge was still "missing." No further effort to find the sponge was made. A few days later, the patient returned to the hospital, reporting abdominal pain, dizziness, and difficulty breathing. The patient was diagnosed with an infected surgical incision. On July 7, 2004, a debridement of the incision revealed the presence of a surgical sponge. The patient filed suit against the hospital and the physician who performed the appendectomy, alleging that the defendants, including unnamed representatives of the hospital, breached the applicable standard of care by failing to account for the sponge before closing the incision, and failing to take further x-rays after the first x-ray was deemed "limited." The plaintiff's complaint was accompanied by an aft]davit of merit signed by Dr. Robert Taube, a board-certified general surgeon licensed to practice in Indiana. The affidavit was notarized and a notary seal affixed to the affidavit. However, it was not certified by the clerk of the court in the county in which the notary public operated. The trial court granted summary judgment for the hospital and doctor involved on the grounds that Dr. Taube's affidavit did not comply with the applicable rules for submitting an affidavit in support of a medical malpractice case under Michigan law. The trial court also granted summary judgment in favor of the hospital on the grounds that Dr. Taube was not qualified to give expert testimony against those other health professionals who were defendants in the case. The plaintiff appealed.

The Court Of Appeals of Michigan reversed the summary judgement entered for the hospital and Dr. Wysong and remanded the case to the trial court for further proceedings. The court held, inter alia, that the trial court erred in failing to recognize that the plaintiff's suit sounded both in medical malpractice and ordinary negligence.

A summary judgement is reviewed de novo on appeal to determine whether, based on the entire record, a party is entitled to judgement as a matter of law. Summary judgment should be granted only when a complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the non-moving party. Under Michigan's rules of procedure where a claim is allegedly barred, a trial court must accept as true the contents of the complaint, unless they are contradicted by documentary evidence submitted by the moving party. That was not the situation in this case! The court found that the plaintiff's affidavit was, in fact, valid, and its filing, with the complaint tolled the statute of limitations. Further, the court concluded that the trial court erred in ruling that the plaintiff's claims did not sound in ordinary negligence as well as in medical malpractice. The court erred when it found that a lay jury could not determine if leaving a surgical sponge in a patient constituted negligence. A medical malpractice claim arises from the course of a professional relationship, and it involves questions of medical judgment beyond the scope of common knowledge and experience. A claim of ordinary negligence raises issues within the common knowledge and experience of a jury. In determining whether a claim sounds in medical malpractice or ordinary negligence, a court must consider: (1) whether the claim pertains to an action that occurred in the context of a professional relationship; and (2) whether the claim raises questions of medical judgment that are beyond the realm of common knowledge and experience. If both questions are answered in the affirmative, the claim sounds in medical malpractice. The court found that the plaintiff's case was premised on the fact that she was discharged with the missing sponge still unaccounted for. The court concluded that a lay jury could determine whether losing a surgical sponge during surgery and discharging a patient without finding the sponge first, constituted ordinary negligence! Small v. Wysong, 2007MICA275332 (11/13/2007) N.W.2d -MI