The Superior Court of Pennsylvania Just Made It a Whole Lot Easier to Blame the Surgical Sponge

By Grant W. Cannon, Esq.*

All surgeries involve some risk that something adverse to the patient’s interests may occur.  One risk common to almost any surgical procedure is the risk of an object being left within the patient after the surgery is complete.  In order to reduce the risk of this happening, hospitals have enacted policies and procedures intended to prevent a retained surgical instrument or sponge.  Unfortunately, sometimes an object is left within a patient regardless of the amount of care that is exercised.  When this happens, it will almost certainly lead to a lawsuit.

For many years, health care providers who were sued because of retained objects could structure their defenses around causation; what damages did the sponge actually cause?  Of course, the plaintiff had the burden of proving, through expert testimony, that the sponge caused damages.  In many cases, a retained sponge does not cause any actual harm to the patient, and the alleged damages are simply the result of the patient's bad health or other comorbidities.  Moreover, oftentimes the sponge is identified and removed before it causes any injury.  Plaintiffs who brought these cases had to overcome significant obstacles and a substantial burden in proving damages and causation. The Pennsylvania Superior Court appears to be removing obstacles and lightening plaintiffs’ burden. 

In July 2014, the Superior Court of Pennsylvania rendered a decision in Fessenden v. Robert Packer Hospital, 97 A.3d 1225 (Pa.Super. 2014).  The plaintiff in the case, Richard Fessenden, underwent removal of a portion of his esophagus and proximal stomach on August 13, 2004.  During the procedure, a laparotomy sponge was placed inside Mr. Fessenden and was never removed.  Shortly after the surgery, Mr. Fessenden allegedly began experiencing intermittent lower abdominal pain.  Four years later, he presented to the emergency room with severe abdominal pain.  A CT scan revealed the presence of the laparotomy sponge.  A subsequent surgical procedure was done to remove the sponge and drain an abdominal abscess that had formed around the sponge.  The procedure also necessitated the removal of Mr. Fessenden's gallbladder and a portion of his small bowel. 

Of course, Mr. Fessenden and his wife filed a lawsuit against his prior surgeon and the hospital.  In their complaint, the Fessendens alleged that the retained sponge caused Mr. Fessenden abdominal pain and an abscess, necessitating surgery, and that it caused him to lose his gallbladder and a portion of his small bowel.  They further alleged that they did not need expert testimony from a licensed medical professional to meet their burden of proof because the doctrine of res ipsa loquitur applied.  When applied, this doctrine allows the fact finder to infer from the circumstances surrounding the injury that the harm suffered was caused by the negligence of the defendant.  

After the Fessendens failed to produce an expert report connecting Mr. Fessenden's alleged injuries to the retained sponge, the defendants filed a motion for summary judgment.  The defendants argued that the Fessendens failed to provide any evidence that the damages complained of were caused by the retained sponge.  Ultimately, the trial court agreed with the defendants and dismissed the case.  The Fessendens then appealed to the Superior Court.

Somewhat surprisingly, the Superior Court overturned the trial court's decision, holding that the Fessendens established that the doctrine of res ipsa loquitur should apply and that they were entitled to an inference of negligence and causation.  To justify the holding, the court stated that the Fessendens proved that sponges are not usually left in patients after surgery and that there was no explanation for the retained sponge other than the defendants' negligence. The court ignored the causation argument upon which the trial court based its decision.  Unfortunately, by ignoring this key element of the defendants' argument for summary judgment, the Superior Court blurred the difference between negligence and causation in cases involving retained surgical instruments and sponges.  In essence, one can argue that the Superior Court's opinion removes a plaintiff's burden of proving negligence and causation in cases pertaining to retained surgical instruments and sponges. 

Only time will tell whether the Superior Court's ruling in Fessenden v. Robert Packer Hospital will be addressed by the Pennsylvania Supreme Court.  Right now, it appears that the Superior Court has made it much easier for plaintiffs to bring claims against health care providers and hospitals when an object is left inside a patient. 

However, the argument must be made that this opinion does not relax a plaintiff's burden of proving damages.  Those who defend health care providers in matters involving retained surgical instruments and sponges will have to stand by the position that the damages portion of these claims still requires expert support, and argue that, otherwise,  the damages are simply speculative.  As this area of the law evolves, this may be the last line of defense. 

*Grant is an associate in our Pittsburgh, Pennsylvania office. He can be reached at 412.803.2440 or gwcannon@mdwcg.com.

Defense Digest, Vol. 20, No. 4, December 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.