An appeals court has upheld a family’s $9.5 million jury award after a physician left an 18-inch sponge in a patient’s abdomen that remained in her stomach for 5 years.
Carolyn Boerste underwent aortobifemoral bypass surgery at University of Louisville Hospital In March 2011 to improve circulation in her lower extremities. She had a history of peripheral vascular disease, hypertension, and diabetes, which caused a wound on her toe to become infected and gangrenous, according to court records.
During the surgery, performed by Marvin Morris, MD, the surgical team left a laparotomy sponge in Boerste’s abdomen. Because of its size, Boerste’s attorneys characterized the 18-by-18-inch object as “more like a towel,” according to court documents.
This sponge was removed from Carolyn Boerste’s abdomen after 5 years. In its original form, the laparotomy sponge was 18 inches by 18 inches, according to attorney Bo Bolus.
During the years that the sponge went undetected, the object eroded via transmural migration from Boerste’s abdomen into her intestine, causing diarrhea, vomiting, and nausea. In March 2015, Boerste was transferred by ambulance to an emergency department because of abdominal pain. An emergency physician ordered an abdominal CT scan, which showed the x-ray detectable sponge marker inside Boerste’s intestine, according to her complaint.
Although the radiologist called the emergency physician to advise him of the sponge marker, the information was not shared with Boerste and she was discharged from the hospital with a urinary tract infection diagnosis. The emergency physician later testified he had no memory of the call with the radiologist.
The CT scan was faxed to Boerste’s family physician. She testified that she read the report but did not mention the sponge marker to Boerste because she believed the issue had been handled by the emergency physician. Thus the sponge remained inside Boerste for another 20 months.
In November 2016, Boerste returned to the same emergency department with more intense gastrointestinal issues. Another CT scan was ordered, which revealed the sponge. The object was removed by exploratory laparotomy later that month. In her complaint, Boerste claimed that the removal surgery resulted in amputation of her leg because of wounds developed on her lower extremities while she was bedridden during recovery.
In 2017, she filed a negligence lawsuit against Morris, the hospital, and several others involved in her care. On the first day of trial in December 2019, the hospital conceded liability. The trial continued against Morris and the other defendants as to liability and damages and proceeded against the hospital as to damages.
At trial, evidence showed there was significant confusion among nurses on how to document sponge counts, according to the appellate decision. In general, nurses used a perioperative nursing record to document the surgical procedure, and that record had a place to document some but not all sponge counts required by hospital policy. The nursing record did not have a place to document sponge counts required to be recorded at every break, lunch, and shift change. Nurses also used a worksheet to track sponge counts, but that worksheet was not part of the medical record.
Morris testified that he relies on nurses regarding sponge counts, but that he also performs a visual and tactile inspection of the abdominal cavity. He acknowledged during trial that the standard of care required him to keep track of the sponges before closing. Morris also testified that the surgeon and nurses are a team, and “the entire team did not count the sponges correctly when finishing the bypass surgery,” according to the appellate decision.
After a 10-day trial, jurors found Morris and several other defendants liable. They apportioned 60% liability to the hospital, 10% to Morris, 15% to the family physician, 0% to the emergency physician, and 15% to the rehabilitation center. Boerste was awarded $9.5 million in damages and an additional $1 million in punitive damages, for a total of $10.5 million.
Morris and the hospital appealed to the Commonwealth of Kentucky Court of Appeals. As the appeal was pending, Boerste died, and her son took over the plaintiff’s role.
In their appeal, Morris and the hospital said they should be granted a new trial for a number of reasons, including that the pain and suffering award was grossly excessive and reflected improper jury sympathy, that the punitive damages award should be vacated because jurors were not properly instructed on the issue, and that the judgment against Morris should be overturned because there was no evidence he deviated from the standard of care.
The defendants also argued that they were entitled to instructions on “apportionment of fault and mitigation of damages against Boerste.” The mitigation of damages doctrine prevents an injured plaintiff from recovering unreasonable expenses associated with their injury if they could have been avoided through reasonable efforts. Specifically, attorneys for Morris emphasized that Boerste failed to follow medical advice for follow-up care, to obtain recommended podiatrist care, and to make necessary efforts to control her diabetes. Had Boerste taken more proactive steps to manage her health, leg amputation may not have been needed because the sponge may have been found during other treatment, they contended.
In its January 7, 2022, opinion, the appeals court upheld the majority of the jury award. Judges wrote that Morris’ testimony alone was sufficient for the jury to determine whether he breached the standard of care, and that the defendants are not entitled to a new trial on pain and suffering damages. In addition, judges rejected mitigation of damages.
“The fact that Boerste was a poor patient who failed to properly treat her diabetes is irrelevant,” the panel wrote in their decision. “She was a poor patient prior to the bypass surgery, and Appellants knew Boerste might ultimately need to have her lower leg amputated at the time of the bypass surgery. Therefore, we hold Appellants were not entitled to instructions on apportionment of fault or mitigation of damages.”
The appeals court, however, vacated the $1 million punitive damages award, ruling that the lower court did not give a proper instruction to the jury on punitive damages. The appeals court sent the case back to the lower court for a retrial as it pertains to punitive damages.
Attorneys for Morris and the hospital did not return messages seeking comment.
Bo Bolus, an attorney for Boerste’s family, said there will be no retrial on punitive damages, and that the plaintiff is satisfied with the outcome of the case.
“While we are pleased that Carolyn’s family and, equally importantly, her memory, now finally have closure on this extremely trying matter, our pleasure is severely tempered by the loss of Carolyn in November of last year,” Bolus said. “After having endured all she did, it is, frankly, painful for all concerned that she will not reap the reward of the jury’s verdict.”
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