Medical Malpractice Litigation and 'Never Events'

In last month's issue, we discussed the recent development of the concept of “Never Events”: things that should never occur absent negligence in hospitals or other health care settings. The federal government and many insurers no longer reimburse care providers for Never-Event injuries, such as bed sores, foreign objects left behind during surgery, and hospital falls, among others.

While the right to be reimbursed for providing care is obviously important, care providers and their attorneys have other concerns about the list of Never Events. Will the list have an impact on medical malpractice claims and their outcomes?

The Left-Behind Foreign Object

Commentators have questioned the wisdom of Medicare's decision to refuse to pay for Never Events. See Sharon K. Inouye, et al., Medicare Nonpayment, Hospital Falls, and Unintended Consequences, 360 (23) New Eng. J. Med. 2390, 2390-92 (2009); See also Peter J. Pronovost, et al., The Wisdom and Justice of Not Paying for “Preventable Complications,” 299(18) J. Am. Med. Ass'n. 2197, 2197-99. However, even critics of the policy in general have characterized Medicare's decision not to reimburse for costs related to leaving objects in the body after surgery as “wise and just.” Id. at 2199. That is because it is considered one of the more preventable adverse events. When discussing the propriety of including retained foreign objects as one of the original eight categories of Never Events in its non-reimbursement policy, the Department of Health and Human Services (the Department) pointed out that in the field of health care, “there are widely accepted and clear guidelines for the prevention of [these] events.” 72 Fed. Reg. 426,206 (Aug. 22, 2007). Consequently, according to the Department, this kind of mistake “should not occur.” Id.

Does all of this mean that a finding of liability in a case of a left-behind object is a foregone conclusion, so that plaintiffs may merely sit back and wait for the damages phase? Some research into recent cases shows that the answer is “no.”

Although there is not a comprehensive database setting forth information about every medical malpractice case filed involving allegations of a retained foreign object, some resources are available for viewing at least part of the picture. One contains a national database of verdicts, judgment and settlements compiled from regional and national jury verdict reporters. It is also one of the only tools available (to plaintiffs' lawyers) to examine how categories of certain types of claims are handled from inception to resolution. (However, some databases have their limitations, as articles are sometimes submitted to these reporters strictly on a voluntary basis. Further, when a medical malpractice claim settles, defendants almost always require confidentiality as part of the settlement agreement. Thus, these databases are no doubt a very small sample of cases filed and litigated.) A search of medical malpractice cases involving the retention of surgical sponges in a major database's national jury verdict section reveals that there have been 12 reported medical malpractice cases involving retained sponges throughout 2008 and 2009. See An v. Shaw, No. 06 L 11100, 2009 WL 5091924 (Ill. Cir. Ct. Oct. 29, 2009) (mother awarded $110,000 for retained sponge after C-section); Anonymous Female Patient v. Anonymous Physician, Anonymous Nurse and Anonymous Clinic, 2009 WL 6366089 (Va. Cir. Ct. Oct. 5, 2009) (settlement reached with clinic for $800,000 after sponge left behind following breast augmentation surgery); Sneeze v. State of Louisiana, No. 154,568, 2009 WL 6528661 (La. Dist. Ct. Jul. 27, 2009) (jury found State of Louisiana liable for failure to train and supervise surgical team after five sponges left behind during hysterectomy); Edmondson v. Oakwood Healthcare, No. 07-721460-NH, 2009 WL 3699101 (Mich. Cir. Ct. Jun. 4, 2009) (jury found for defendants, who argued plaintiff with left-behind sponge must have undergone another surgery because the sponge was not the type that would have been used in the procedure in issue, two correct sponge counts were documented, and the only sponges used in the operating room at the time of the procedure were different than the recovered sponge); Anonymous 31 Year Old Female v. Anonymous OB/GYN And Anonymous Hospital; 2009 WL 6366051 (Ohio Com. Pl. Jun. 1, 2009) (settlement for $275,000 for left-behind sponge after C-section); Khaulipour v. St. Ann's Hospital, Kington, and Jiricko, No. 07-CV-001264, 2009 WL 3748727 (Ohio Com.Pl. May 18, 2009) (jury returned verdict for defense when mother who claimed sponges were left behind following childbirth was unable to prove the existence of the left-behind sponges); Davis v. Jacobs, No. 06-CV-3409, 2009 WL 1740332 (N.C. Super. Ct. Jan. 16, 2009) (jury returned defense verdict when surgeon said he did not use sponges when performing C-sections and counting of sponges would have been nurses' job anyway (note, however, that plaintiff was pro se and did not employ experts in her case)); Haden v. Kramer, Patrick County Family Practice, P.C. and R.J. Reynolds Patrick County Memorial Hospital Inc., No. CL07149, 2008 WL 6400289 (Va. Cir. Ct. Oct. 16, 2008) (defense verdict where jury found sponge was left behind during earlier surgery performed by non-party); De La Cruz vs. Purdom, No. VC048742, 2008 WL 7165022 (Cal. Super. Ct. Jun. 16, 2008); Young v. Levitt, No. 277895V, 2008 WL 4614405 (Md. Cir. Ct. Jun. 16, 2008) (plaintiff verdict for $4.5 million (reduced to $1.3 million per statutory cap) when surgical sponge left behind during hysterectomy by surgeon plaintiff alleged was unsympathetic to her resulting pain); Hanner v. Mark Jones, No. 02-VS-041911, 2008 WL 4614375 (Ga. State Ct. May 19, 2008) (doctor successfully convinced jury that, although sponge left behind, he truly and reasonably believed it had not been); Green vs. Sheila Miller, No. CV-2004-1038, 2008 WL 4847169 (Ala. Cir. Ct. Feb. 27, 2008) ($205,000 verdict for plaintiff against doctor); and Lynch v. St. Vincent Hosps. and Health Servs., No. 49C01-0503-CT-10724, 2008 WL 4276346 (Ind. Cir. Ct. Feb. 28, 2008) (jury found for plaintiffs against hospital when sponge left behind during childbirth procedure, but sided with doctor who argued a medical review panel had rendered a unanimous opinion that he did not fail to meet the appropriate standard of care).

In two of the cases cited above, the plaintiffs did not seek compensation from the hospital or medical facility, but rather pursued causes of action exclusively against the treating physicians. In four of the remaining 10 cases the medical facilities settled without the necessity of a lawsuit. Two other cases were settled after suit was filed but prior to trial. The final four lawsuits resulted in two verdicts against hospitals as well as two verdicts in which the hospitals prevailed. Thus, from the sample of the 12 cases appearing in a national jury verdict data base, it is clear that these cases are still being litigated and defended by hospitals in a negligence setting, despite the fact that Medicare and private insurance companies had already concluded that cases of retained sponges are entirely preventable events that should not occur and should not be paid for. And doctors, for their part, are sometimes successful in arguing that although sponges were left behind, their conduct did not fall below the standard of care.

Never Events and Hospital Protocols

In New Jersey, where we practice, hospital protocols are admissible at trial and can constitute evidence of the prevailing standard of care applicable to medical providers. Rosenberg v. Tovorath, 352 N.J. Super. 385, 406 (App. Div. 2002). Additionally, practice guidelines published by professional medical organizations have been deemed evidence of what accepted standards of medical care are. Perna v. Pirozzi, 92 N.J. 446, 463-464 (1983). Similarly, if a statute sets forth the appropriate standard of care that should be followed by a medical provider, that statute is admissible as standard-of-care evidence. DiGiovanni v. Pessel, 104 N.J. Super. 550, 562-563 (App. Div. 1969). Pronouncements from administrative agencies pertaining to issues of medical care have also been deemed admissible to establish governing standards of medical care. Swank v. Halivopoulos, 108 N.J. Super. 120, 126-127 (App. Div. 1969).

Given the evidentiary nature of professional practice guidelines and administrative regulations, it is reasonable to expect that public policy decisions regarding the compensability of Never Events and the standard of care in medical malpractice litigations will eventually converge.

Conclusion

As we have seen, although commentators and regulators have stated that there is no excuse for leaving objects behind during surgery, these types of cases are still being defended and litigated. And sometimes, hospitals and doctors are winning.

The concept of Never Events is also affecting internal policies. Medical practice and hospital protocols will almost surely be amended to include measures to prevent Never Events from occurring, if they haven't already been so changed.

Of course, case law is constantly evolving to reflect changes in society. It will be interesting to see how the decision by Medicare and the insurance industry, to declare certain categories of events non-compensable because they should not occur in safe hospitals, will impact future medical malpractice litigations.

John Ratkowitz, a member of this newsletter's Board of Editors, is a partner at Starr, Gern, Davison & Rubin, P.C., in Roseland, NJ. Robert Sanfilippo is an associate at the firm.

In last month's issue, we discussed the recent development of the concept of “Never Events”: things that should never occur absent negligence in hospitals or other health care settings. The federal government and many insurers no longer reimburse care providers for Never-Event injuries, such as bed sores, foreign objects left behind during surgery, and hospital falls, among others.

While the right to be reimbursed for providing care is obviously important, care providers and their attorneys have other concerns about the list of Never Events. Will the list have an impact on medical malpractice claims and their outcomes?

The Left-Behind Foreign Object

Commentators have questioned the wisdom of Medicare's decision to refuse to pay for Never Events. See Sharon K. Inouye, et al., Medicare Nonpayment, Hospital Falls, and Unintended Consequences, 360 (23) New Eng. J. Med. 2390, 2390-92 (2009); See also Peter J. Pronovost, et al., The Wisdom and Justice of Not Paying for “Preventable Complications,” 299(18) J. Am. Med. Ass'n. 2197, 2197-99. However, even critics of the policy in general have characterized Medicare's decision not to reimburse for costs related to leaving objects in the body after surgery as “wise and just.” Id. at 2199. That is because it is considered one of the more preventable adverse events. When discussing the propriety of including retained foreign objects as one of the original eight categories of Never Events in its non-reimbursement policy, the Department of Health and Human Services (the Department) pointed out that in the field of health care, “there are widely accepted and clear guidelines for the prevention of [these] events.” 72 Fed. Reg. 426,206 (Aug. 22, 2007). Consequently, according to the Department, this kind of mistake “should not occur.” Id.

Does all of this mean that a finding of liability in a case of a left-behind object is a foregone conclusion, so that plaintiffs may merely sit back and wait for the damages phase? Some research into recent cases shows that the answer is “no.”

Although there is not a comprehensive database setting forth information about every medical malpractice case filed involving allegations of a retained foreign object, some resources are available for viewing at least part of the picture. One contains a national database of verdicts, judgment and settlements compiled from regional and national jury verdict reporters. It is also one of the only tools available (to plaintiffs' lawyers) to examine how categories of certain types of claims are handled from inception to resolution. (However, some databases have their limitations, as articles are sometimes submitted to these reporters strictly on a voluntary basis. Further, when a medical malpractice claim settles, defendants almost always require confidentiality as part of the settlement agreement. Thus, these databases are no doubt a very small sample of cases filed and litigated.) A search of medical malpractice cases involving the retention of surgical sponges in a major database's national jury verdict section reveals that there have been 12 reported medical malpractice cases involving retained sponges throughout 2008 and 2009. See An v. Shaw, No. 06 L 11100, 2009 WL 5091924 (Ill. Cir. Ct. Oct. 29, 2009) (mother awarded $110,000 for retained sponge after C-section); Anonymous Female Patient v. Anonymous Physician, Anonymous Nurse and Anonymous Clinic, 2009 WL 6366089 (Va. Cir. Ct. Oct. 5, 2009) (settlement reached with clinic for $800,000 after sponge left behind following breast augmentation surgery); Sneeze v. State of Louisiana, No. 154,568, 2009 WL 6528661 (La. Dist. Ct. Jul. 27, 2009) (jury found State of Louisiana liable for failure to train and supervise surgical team after five sponges left behind during hysterectomy); Edmondson v. Oakwood Healthcare, No. 07-721460-NH, 2009 WL 3699101 (Mich. Cir. Ct. Jun. 4, 2009) (jury found for defendants, who argued plaintiff with left-behind sponge must have undergone another surgery because the sponge was not the type that would have been used in the procedure in issue, two correct sponge counts were documented, and the only sponges used in the operating room at the time of the procedure were different than the recovered sponge); Anonymous 31 Year Old Female v. Anonymous OB/GYN And Anonymous Hospital; 2009 WL 6366051 (Ohio Com. Pl. Jun. 1, 2009) (settlement for $275,000 for left-behind sponge after C-section); Khaulipour v. St. Ann's Hospital, Kington, and Jiricko, No. 07-CV-001264, 2009 WL 3748727 (Ohio Com.Pl. May 18, 2009) (jury returned verdict for defense when mother who claimed sponges were left behind following childbirth was unable to prove the existence of the left-behind sponges); Davis v. Jacobs, No. 06-CV-3409, 2009 WL 1740332 (N.C. Super. Ct. Jan. 16, 2009) (jury returned defense verdict when surgeon said he did not use sponges when performing C-sections and counting of sponges would have been nurses' job anyway (note, however, that plaintiff was pro se and did not employ experts in her case)); Haden v. Kramer, Patrick County Family Practice, P.C. and R.J. Reynolds Patrick County Memorial Hospital Inc., No. CL07149, 2008 WL 6400289 (Va. Cir. Ct. Oct. 16, 2008) (defense verdict where jury found sponge was left behind during earlier surgery performed by non-party); De La Cruz vs. Purdom, No. VC048742, 2008 WL 7165022 (Cal. Super. Ct. Jun. 16, 2008); Young v. Levitt, No. 277895V, 2008 WL 4614405 (Md. Cir. Ct. Jun. 16, 2008) (plaintiff verdict for $4.5 million (reduced to $1.3 million per statutory cap) when surgical sponge left behind during hysterectomy by surgeon plaintiff alleged was unsympathetic to her resulting pain); Hanner v. Mark Jones, No. 02-VS-041911, 2008 WL 4614375 (Ga. State Ct. May 19, 2008) (doctor successfully convinced jury that, although sponge left behind, he truly and reasonably believed it had not been); Green vs. Sheila Miller, No. CV-2004-1038, 2008 WL 4847169 (Ala. Cir. Ct. Feb. 27, 2008) ($205,000 verdict for plaintiff against doctor); and Lynch v. St. Vincent Hosps. and Health Servs., No. 49C01-0503-CT-10724, 2008 WL 4276346 (Ind. Cir. Ct. Feb. 28, 2008) (jury found for plaintiffs against hospital when sponge left behind during childbirth procedure, but sided with doctor who argued a medical review panel had rendered a unanimous opinion that he did not fail to meet the appropriate standard of care).

In two of the cases cited above, the plaintiffs did not seek compensation from the hospital or medical facility, but rather pursued causes of action exclusively against the treating physicians. In four of the remaining 10 cases the medical facilities settled without the necessity of a lawsuit. Two other cases were settled after suit was filed but prior to trial. The final four lawsuits resulted in two verdicts against hospitals as well as two verdicts in which the hospitals prevailed. Thus, from the sample of the 12 cases appearing in a national jury verdict data base, it is clear that these cases are still being litigated and defended by hospitals in a negligence setting, despite the fact that Medicare and private insurance companies had already concluded that cases of retained sponges are entirely preventable events that should not occur and should not be paid for. And doctors, for their part, are sometimes successful in arguing that although sponges were left behind, their conduct did not fall below the standard of care.

Never Events and Hospital Protocols

In New Jersey, where we practice, hospital protocols are admissible at trial and can constitute evidence of the prevailing standard of care applicable to medical providers. Rosenberg v. Tovorath , 352 N.J. Super. 385, 406 (App. Div. 2002). Additionally, practice guidelines published by professional medical organizations have been deemed evidence of what accepted standards of medical care are. Perna v. Pirozzi , 92 N.J. 446, 463-464 (1983). Similarly, if a statute sets forth the appropriate standard of care that should be followed by a medical provider, that statute is admissible as standard-of-care evidence. DiGiovanni v. Pessel , 104 N.J. Super. 550, 562-563 (App. Div. 1969). Pronouncements from administrative agencies pertaining to issues of medical care have also been deemed admissible to establish governing standards of medical care. Swank v. Halivopoulos , 108 N.J. Super. 120, 126-127 (App. Div. 1969).

Given the evidentiary nature of professional practice guidelines and administrative regulations, it is reasonable to expect that public policy decisions regarding the compensability of Never Events and the standard of care in medical malpractice litigations will eventually converge.

Conclusion

As we have seen, although commentators and regulators have stated that there is no excuse for leaving objects behind during surgery, these types of cases are still being defended and litigated. And sometimes, hospitals and doctors are winning.

The concept of Never Events is also affecting internal policies. Medical practice and hospital protocols will almost surely be amended to include measures to prevent Never Events from occurring, if they haven't already been so changed.

Of course, case law is constantly evolving to reflect changes in society. It will be interesting to see how the decision by Medicare and the insurance industry, to declare certain categories of events non-compensable because they should not occur in safe hospitals, will impact future medical malpractice litigations.

John Ratkowitz, a member of this newsletter's Board of Editors, is a partner at Starr, Gern, Davison & Rubin, P.C., in Roseland, NJ. Robert Sanfilippo is an associate at the firm.