Louisiana Personal Injury Lawyer Blog
The Louisiana Court of Appeals rejected an appeal filed by an unhappy patient regarding her medical malpractice claim against the Women and Children’s Hospital Lake Charles and her doctor. The patient, who will be referred to Jane Doe for privacy purposes, underwent a weight loss procedure known as a lap band surgery. Known in the medical industry to be a minimally invasive surgery, this procedure involves the doctor inserting an adjustable belt around the top section of the stomach to create a full feeling in the patient. Doe filed her claim in order to recover damages as a result of a sponge that had been left within her abdomen during the procedure despite the numerous counts required by the hospital’s procedure for surgery.
The district court awarded Doe $50,000 and apportioned fault equally between the Doctor and the hospital. For a variety of reasons, Doe appealed that judgment, claiming that the doctor was not at fault in her claim and asking the courts to put full responsibility upon the hospital. In personal injuries law, the judge is responsible for distributing fault between the parties involved so that each one only pays for the damages he specifically caused. To prove medical malpractice against a Louisiana physician, the plaintiff must show the doctor lacked the knowledge and skill required by physicians in his specialty or failed to use reasonable care, and that the plaintiff suffered in a way that plaintiff would not have otherwise. The hospital’s procedure requires three separate sponge counts during different periods of the surgery. Not only does the surgical technician count the sponges, but a nurse oversees each of the counts.
So who is responsible for a sponge being left in Doe’s abdomen? The appeals court agreed with the lower district court in their ruling, following previous decisions holding that leaving sponges in patients is a breach of duty by the surgeon. But when a hospital affirmatively assigns that duty to multiple staff members (none of which are the surgeon) on what do the courts rely for creating such a duty for the surgeon? During most of the entire surgery, it wasn’t even possible for the surgeon to see the sponges since his field of view is limited and magnified. Two members of the surgical staff were responsible for counting the sponges on three separate occasions. The count is recorded on the white board at the beginning of the procedure. Therefore, both staff members counting could have double-checked their numbers on the white board at the end of the surgery.
The appeals court affirmed the district court’s judgment that the surgeon had breached his duty to Doe by negligently leaving one of the surgical sponges within her body. However, when considering The doctor’s fault, neither of the courts seemed to consider the numerous preventative measures the hospital had in place, instead following the “well-established jurisprudence” on the issue.