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Needle left in pt. during heart valve replacement surgery.

CASE ON POINT: Towns v. Sinai Hospital, 2002 WL 31955127 N.W. 2D--MI

ISSUE: Ordinarily, when a foreign object is left in a patient after surgery, the patient has a clear and compelling case against the physicians responsible. In many cases, the doctrine of Res Ipsa Loquitur (RIL) is applicable. In this unusual Michigan case, the courts were confronted with a situation, in which neither side contested the fact that a needle was left in a patient after heart valve replacement surgery. The patient's case did not have smooth sailing through the courts.

CASE FACTS: Raymond Towns underwent heart valve replacement surgery, which was performed by Dr. Eric Hanson, an employee of Sinai Hospital. A surgical needle, which was used during the heart valve replacement surgery was left inside the patient. The patient did not experience any postoperative chest pain. Approximately three and one-half months after the surgery, the patient was informed of the needle in his chest. The patient went to see another physician and a lawyer since he was understandably upset and concerned about what might happen to him. The patient filed suit against Dr. Hanson and Sinai Hospital. The patient alleged, inter alia, that he sustained great bodily injury, including but not limited to scarfing of internal tissue, movement of the needle, metallic poisoning, puncturing of internal organs, and interference with the function of internal organs. Further, he alleged great phycological injury as well as emotional injury as a result of his knowledge of the presence of the surgical needle. The patient's expert, Dr. Hayward Maben, stated in a supporting affidavit that the patient was undergoing great and psychological injury as a result of his knowledge of the presence of the surgical needle, and was receiving treatment for it. However, during the course of Dr. Maben's deposition, he testified that the needle "is not going to move, will not puncture any of the plaintiffs organs, and will not cause metallic poisoning." Although, the law suit contained an allegation that the plaintiff was experiencing a "sticking sensation," Dr. Maben stated that he was not aware of anything that would cause "sticking sensation" in the plaintiffs chest and that he did not believe that it was related to the foreign object in the body of the patient. The defendants moved for summary judgment arguing that the plaintiff failed to present evidence that he suffered compensible damages, either physical or emotional. In response, the plaintiff argued that he sustained identifiable injury, to wit, "a foreign object left in his body." The Wayne Circuit Court granted the defendant's motion for summary judgment on the grounds that the plaintiff could not establish an element of damage, either physical or emotional. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of Michigan affirmed the judgment of the lower court. The court held, inter alia, that because the plaintiff did not present sufficient evidence to create a genuine issue of material fact regarding an objective and physical injury that the trial court did not err in granting the defendants' motion for summary judgment.

LEGAL COMMENTARY: All of the elements for a jury trial were present. There was, in fact, a foreign object left in the patient. It was incontrovertible that the foreign object was left as a result of the patient's heart valve replacement. How could anyone (including the court) conclude that whether this patient sustained damages was not a matter for a jury to decide? Frankly, it appears that the element of damages should have presented a triable issue of fact for a jury. Conceivably, a July could have awarded as little as $1.00 in damages recognizing that the foreign object was left in the patient, which reasonably would cause some degree of anxiety. Editor's Note: In reviewing this case, it appears that the patient's medical expert was not prepared to render testimony relative to the potential risks, if any, regarding the foreign object left in the patient's body. An expert might be able to give an opinion as to the "likelihood" that the foreign object would not cause any future complications. However, it seems highly unlikely that anyone could testify (with a reasonable degree of medical certitude) that there would be no chance whatsoever that this object might not move at some time in the future, thus, creating a situation, which might pose a risk or present the necessity for another operation to remove the foreign object. The mere possibility of this, however remote, would cause the reasonable patient anxiety to a greater or lesser degree depending upon his or her personal makeup, constitution, etc.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I. firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievement as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.
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Title Annotation:Medical Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Jan 1, 2003
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