Client vs. Surgeon & Hospital- Mastectomy – Breast Reconstruction – Foreign Object
Type of Action – Medical malpractice
Type of Injuries – Suture needle left in breast Judge or Jury —Jury
Awarded / Settled – Awarded
Amount – $150,000
Plaintiffs Attorney – Gregory S. Larsen, Chesapeake
Plaintiffs Experts – One plastic surgeon and one neurologist
Defendant’s Experts – Two plastic surgeons and one neurologist
Other Useful Information – The defendant doctor conducted a breast-reconstruction procedure on the plaintiff in 1990 immediately after a radical mastectomy. The doctor left a surgical needle in her breast and failed to disclose this to the plaintiff and failed to attempt to locate or remove the needle during a later surgery.Although the plaintiff followed up with the defendant until 1994, he never revealed the presence of the needle to the plaintiff, despite a colleague’s encouragement to do so. Subsequent X-rays of the area continued to indicate the presence of the needle.
In 1999, the plaintiff had a routine X-ray taken for possible bronchitis. As an employee of the hospital where the X-ray was taken, the plaintiff was able to review the X-ray report and discover the presence of the needle.The plaintiffs expert conceded that he would not have risked removing the needle, but he added that the standard of care required the surgeon to advise the patient of the foreign body. He further admitted that the needle posed little, if any, risk to the plaintiff. The defendant’s experts insisted that significant metal and hardware are intentionally left behind in these procedures.
During the trial, the doctor argued, inter alia, that he was not responsible for the actions of the operating room staff, including two assistant surgeons and the doctor’s partner. The court held that since he was the plaintiffs treating and admitting physician, the jury could determine that the doctor was in charge of the surgery and responsible for the actions of operating-room personnel.
Moreover, the court granted the plaintiffs motion in limine prohibiting the defendant from using the term “co-surgeon” to describe the defendant’s partner. Finally, at the plaintiffs request, the court instructed the jury on the doctrine of res ipsa loquitor in addition to standard negligence instructions. The jury returned a verdict of $150,000 for the plaintiff.
The defendant subsequently appealed to the Supreme Court of Virginia, arguing that the trial court erred (1) by instructing the jury that the defendant was the lead surgeon responsible for the negligence of the assisting physicians; (2) by instructing the jury on the doctrine of res ipsa loquitor, particularly with respect to the issue of whether the instrumentality that caused the harm was under the defendant’s exclusive control; and (3) by failing to grant the defendant’s motion to strike on the ground that the plaintiff failed to present a prima facie case for negligence. The Supreme Court denied the defendant’s appeal and subsequent petition fora rehearing
“Medical Malpractice, Mastectomy- Breast Reconstruction- Foreign Object.” Virginia Lawyers Weekly 03 June 2002.
