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Thompson v. Baptist Memorial Hospital-DeSoto, Inc.

Supreme Court of Mississippi

April 26, 2018

DORETHA THOMPSON
v.
BAPTIST MEMORIAL HOSPITAL-DeSOTO, INC. AND JAMES E. FORTUNE, M.D.

          DATE OF JUDGMENT: 07/29/2015

          DeSOTO COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM, SR. TRIAL JUDGE

          TRIAL COURT ATTORNEYS: BRANDON ISAAC DORSEY KEVIN O'NEAL BASKETTE WALTER ALAN DAVIS SARAH KATHERINE EMBRY ALBERT C. HARVEY

          ATTORNEY FOR APPELLANT: BRANDON ISAAC DORSEY

          ATTORNEYS FOR APPELLEES: WALTER ALAN DAVIS KEVIN O'NEAL BASKETTE ALBERT C. HARVEY

          BEFORE WALLER, C.J., KITCHENS, P.J., AND BEAM, J.

          BEAM, JUSTICE.

         ¶1. Doretha Thompson appeals from the DeSoto County Circuit Court's judgment on a jury verdict in favor of the defendants, Baptist Memorial Hospital DeSoto, Inc. (BMH-D), and James Fortune, M.D., in a medical malpractice case. A surgical sponge inadvertently was left inside Thompson's abdomen during an operation performed by Dr. Fortune to remove Thompson's gallbladder in 2004. The sponge was not discovered until 2011, when Thompson presented to the emergency room in Bolivar County complaining of stomach pains.

         ¶2. Dr. Fortune admitted at trial that the sponge inadvertently had been left in Thompson's abdomen during the 2004 operation. And he admitted the sponge was the cause of Thompson's 2011 injury and complications. But Dr. Fortune claimed he did not deviate from the applicable standard of care, which he contended did not require him to count or keep track of the number of surgical sponges used in the operation, but which allowed him to rely on an accurate sponge count conducted by a nurse and scrub technician assisting in the 2004 procedure, both of whom were employed by BMH-D. All parties provided expert testimony in support of their respective cases.

         ¶3. This appeal followed, with numerous issues raised by Thompson. The only one we find that has merit is Thompson's claim the jury was not properly instructed on the law in this case. As will be explained, this constituted reversible error, and Thompson is entitled to a new trial against both defendants.

         FACTS

         ¶4. In June 2004, Dr. Fortune performed a cholecystectomy on Thompson at BMH-D, to remove her gallbladder. Dr. Fortune had intended to perform a less-invasive laparoscopic procedure, but the inflamation around Thompson's gallbladder was too great. So Dr. Fortune converted the procedure to an open operation, having informed Thompson beforehand this might be necessary. The surgery lasted approximately ninety-five minutes, and Dr. Fortune successfully removed Thompson's gallbladder. But a four-by-four-inch "ray-tec" surgical sponge was left in Thompson's abdomen by mistake.

         ¶5. Shortly after surgery, Thompson developed an abscess, along with fluid collection in her abdomen. She displayed an elevated white blood cell count and a decreased hematocrit level. Dr. Fortune became concerned, so he ordered a CT scan of the abdomen. He said that, while such a scenario is not uncommon, he wanted to ensure there was nothing that he needed to attend to in the abdomen or in the surgical field, "[and] to see if there's any infection, any fluid, whether that be a hematoma with bleeding or whether that be inflammatory fluid or whether inflammatory fluid has become infected or forming an abscess or whether there's any fluid there from a bile leak."

         ¶6. Dr. Fortune asked Mid-South Imaging and Therapeutics (MSIT) to perform a CT scan of Thompson's abdomen. A scan was conducted, and MSIT made a report to Dr. Fortune. Dr. Fortune said the report noted "fluid collection in the gallbladder fossa." Dr. Fortune indicated that he did not review the CT scan(s).

         ¶7. Dr. Fortune then consulted with a "interventional radiologist" employed by MSIT to drain the fluid. The radiologist performed a "fluid gallbladder fossa" by placing a drain inside Thompson's abdomen by "CT guidance, " which drained and cultured the fluid.

         ¶8. Dr. Fortune was asked on direct examination whether he had been there for the procedure. Dr. Fortune stated: "No, sir. Basically, [the interventional radiologist] doesn't come into surgery with my expertise, and I don't go into his expertise there because I'm not qualified to do so. That's his expertise."

         ¶9. After MSIT performed the procedure, Dr. Fortune read the report, which said the area was drained successfully and indicated no other problems in Thompson's abdomen other than the fluid. Thompson's white blood cell count returned to normal, and Thompson continued "a more usual postoperative course . . . ." Dr. Fortune discharged Thompson from the hospital on July 6, 2004.

         ¶10. Thompson testified that for years afterward, she experienced intermittent abdominal pain, which she treated herself with over-the-counter medications. In November 2011, Thompson went to the emergency room at Bolivar County Medical Center complaining of abdominal pain on the right side of her abdomen. An abdominal scan detected a "foreign body" inside Thompson's abdomen. Doctors suspected it was a surgical sponge from the 2004 gallbladder surgery. Bolivar County Medical Center transferred Thompson to BMH-D for further care.

         ¶11. On November 21, 2011, Dr. Fortune performed another open operation on Thompson to retrieve and remove the sponge. After locating and removing the sponge, Dr. Fortune found a "pin-size communication of fistula to the first portion of the duodenum[, along] with associated abscess." Dr. Fortune said this injury was caused by the sponge. In his opinion, the "hole" created by the sponge most likely developed shortly before Thompson reported to the emergency room in Bolivar County in 2011. Dr. Fortune explained that when a "hole" like that is established, "acid that accumulates in the stomach and duodenum, leak[s through causing] immediate and severe symptoms, burning symptoms or symptoms related to the acid like if you drop acid on your skin or anything, it hurts."

         ¶12. Dr. Fortune irrigated the area with saline and antibiotic solution. He treated the "fistula" caused by the sponge with medication used to treat ulcers, gastritis, or duodenitis. In Dr. Fortune's opinion, this treatment successfully healed Thompson's injury.

         ¶13. Evidence was presented that, after removal of the sponge, Thompson reported to the emergency room at Bolivar County Medical Center on at least eight occasions between 2012 and 2014. An April 2014 medical report stated: "Subjectively, the patient has a long history of abdominal pain, intermittent abdominal pain since the removal of the foreign body. Comes in this time diarrhea, nausea, vomiting, abdominal pain localized to the right upper quadrant."

         ¶14. In July 2014, Thompson was evaluated at Bolivar County Medical Center and transferred to the University of Mississippi Medical Center (UMMC) in Jackson, Mississippi, for further evaluation, where she was diagnosed with duodenitis. Thompson returned to UMMC in September 2014 for a follow-up examination, at which point the "duodenitis ha[d] resolved." Thompson was instructed to continue taking "antiacid medications and [to] come back if her symptoms returned."

         Thompson's Expert Witness

         ¶15. At trial, Thompson presented expert testimony from Kenneth Larson, M.D., a general surgeon on staff at JFK Medical Center in West Palm Beach, Florida. Dr. Larson testified that Dr. Fortune had deviated from the applicable standard of care and was responsible for the surgical sponge being left in Thompson's abdomen. Dr. Larson said that if a surgeon is being careful and prudent during surgery, he or she will know what he or she is putting into the abdomen: "which instruments you're using, and when you're no longer in need of those instruments or those sponges, you're going to remove exactly as many sponges in this case as you put in." Dr. Larson said a surgeon has to have "situational awareness of that during the surgery."

         ¶16. Speaking to this particular case, Dr. Larson said Dr. Fortune properly converted the laparoscopic procedure to open surgery given the amount of inflammation surrounding the gallbladder. This allowed Dr. Fortune to push more tissue apart and to see more of the anatomy in order to complete the operation successfully. Dr. Larson opined that a surgeon such as Dr. Fortune is not expected to write down the number of sponges used, "like the nurse might, " but the surgeon has a responsibility to be aware of how many sponges he is using, as he is the one ultimately in control of the equipment used, including the sponges.

         ¶17. When asked what Dr. Fortune was supposed to do once told by the nurse the sponge count was correct, Dr. Larson replied: "Well, this is getting off onto the issue that you raised. I mean there's more than one person responsible here. Ultimately, the surgeon is the one who has the ultimate responsibility for making sure that they don't leave their own surgical equipment that they put into the abdomen."

         ¶18. Dr. Larson said, "[t]he surgeon is not allowed to solely rely on the count provided by the nurses. That would be below the standard of care." Dr. Larson further testified that in his opinion, the retained sponge not only caused the 2011 injury, but it likely contributed to Thompson's subsequent presentations to Bolivar County Medical Center and UMMC in 2012, 2013, and 2014.

         Surgical Report from the 2004 Procedure

         ¶19. A surgical report presented at trial shows that the 2004 procedure began at 5:05 p.m. and concluded at 6:30 p.m. Those present in the operating room during the surgery were Dr. Fortune; nurse anesthetist Larry Reed, C.R.N.A.; circulating nurse Andrea Johnson, R.N.; scrub technician Chris Lee, R.N.; and scrub technician/surgical assistant Marritta Polk. Also present in the operating room was circulating nurse Theresa Buckhalter, R.N., who entered the operating room at 6:10 p.m. to relieve Johnson. All those assisting Dr. Fortune were BMH-D employees.

         ¶20. According to the 2004 surgical report, Dr. Fortune arrived in the operating room at 5:00 p.m and left at 6:35 p.m.; Reed, 4:34 p.m. to 6:40 p.m.; Lee, 4:00 p.m. to 6:40 p.m.; Johnson, 4:34 p.m. to 6:10 p.m.; Polk, 4:30 p.m. to 6:40 p.m.; and Buckhalter, 6:10 p.m. to 6:45 p.m.

         Johnson's Testimony

         ¶21. At trial, Johnson was called by Thompson to testify. Johnson was the only person, besides Dr. Fortune, present at the 2004 operation who provided testimony in this case.

         ¶22. Johnson testified to the general responsibilities of a circulating nurse for surgical procedures. She said a circulating nurse is responsible for all nonsterile aspects of a surgery, such as prepping the surgical instruments and supplies, helping with all the documentation in the case, and assisting with the patient before and after surgery. This includes bringing the surgical instruments and supplies into the operating room and getting them to the scrub technician in a sterile fashion. Johnson said they do an instrument count and a sponge count as necessary for each particular case. She said not all surgeries require sponge counts, but open operations involving the abdominal cavity always do because you are "entering into a large cavity."

         ¶23. Johnson said in a case such as this one, which initially was scheduled as a laparoscopic procedure, sponges would have been prepared for use beforehand because such procedures tend to convert to open operations. Johnson said both she and the scrub technician would have been responsible for the sponge count, which would have been conducted prior to surgery.

         ¶24. Johnson could not recall offhand the specifics of Thompson's 2004 surgery nor how many surgical sponges were used for that surgery. She said the sponge count sheet used to keep track of the sponge count was not retained with Thompson's medical records, since that was "not our standard practice to keep the actual sponge count sheets on the record."

         ¶25. Reading from the 2004 surgical report during her testimony, Johnson acknowledged a particular field contained in the report that read: "Initial count by[;] Relief count by[;] Closing count by[;] Final count by[.]" The field contained two sets of initials, Johnson's and Lee's, for each category, with the exception of the relief-count of the category, which was left blank. Johnson said this indicates to her that the sponge count was completed before she was relieved by Buckhalter, and it was unnecessary to do a relief count.

         ¶26. Johnson said if there is a discrepancy in the count, an x-ray is taken. Each sponge contains blue strips with "x-ray filaments in them" so they can be seen on x-ray. Johnson said if an x-ray was taken, she would speak to the radiologist who would inform her whether a sponge was detected. If anything was detected, she would inform the surgeon. If nothing was detected, she also would inform the surgeon, who would then continue to close the procedure.

         ¶27. Johnson said if the sponge count(s) show a discrepancy, they "addressograph those count sheets" and fill out a risk-management form which goes to risk management. According to Johnson, such information still would not go into the patient's chart.

         Dr. Fortune's Testimony

         ¶28. In reference to the 2004 procedure, Dr. Fortune testified that Polk would have been on the opposite side of the surgical table facing and assisting him. The scrub technician handling the surgical tools and sponges would have been standing immediately to either Dr. Fortune's right or left side. Dr. Fortune said an assistant, such as Polk, may from "time to time" place and remove sponges during an operation, but the surgeon places and removes the sponges the majority of the time. Dr. Fortune could not recall whether Polk inserted any surgical sponges inside Thompson's abdomen.

         ¶29. Dr. Fortune said he would not, "except for extreme situations leave sponges in the abdomen." He would, however, purposely leave items such as surgical clips and "Surgicels"[1]inside a patient, and did so for Thompson's 2004 surgery. Dr. Fortune explained that in a gallbladder removal, surgical clips are used "after you dissect out and isolate the cystic duct, . . . where it joins the common duct, [and] the cystic artery, . . . where it joins the hepatic artery[;] you put clips on those two structures, two usually, two to three [on] the retained side, one on the gallbladder side, and then cut those, and then dissect the gallbladder out of the gallbladder bed."

         ¶30. He said metal surgical clips were used in the 2004 surgery. Dr. Fortune explained that the body has an inflammatory reaction to a foreign object left in the body, such as a surgical clip, which should taper off in the months following an operation. He said the ...


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