OF JUDGMENT: 07/29/2015
COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM, SR. TRIAL JUDGE
COURT ATTORNEYS: BRANDON ISAAC DORSEY KEVIN O'NEAL
BASKETTE WALTER ALAN DAVIS SARAH KATHERINE EMBRY ALBERT C.
ATTORNEY FOR APPELLANT: BRANDON ISAAC DORSEY
ATTORNEYS FOR APPELLEES: WALTER ALAN DAVIS KEVIN O'NEAL
BASKETTE ALBERT C. HARVEY
WALLER, C.J., KITCHENS, P.J., AND BEAM, J.
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
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.
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.
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
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."
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).
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.
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."
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.
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.
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
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.
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
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
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."
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.
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
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.
Report from the 2004 Procedure
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
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.
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.
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."
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.
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
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.
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.
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
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
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"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."
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 ...