Dueling Defendants

What happens when defendants blame each other for a complication? Here are 2 examples.

During a laparoscopic hysterectomy, bleeding occurred that necessitated conversion to an open procedure. In the process of controlling the uterine artery, a blue towel, normally used for draping only, was placed in the wound to help keep the intestines out of the way. Postoperatively, the patient had pain, fever, and wound drainage.

As described in an article on the Contemporary OB/GYN website, the blue towel was found during a second procedure a month later. The operative incision had to be left open, and a colostomy was performed. An incisional hernia developed after the colostomy closure, and its repair was accompanied by a partial bowel resection.

The patient sued the surgeon, the assistant surgeon, the hospital, and 2 surgical technicians who participated in the case. The technicians claimed that the surgeon had inserted the towel without their knowledge. The surgeon said that he had asked for the blue towel, and a technician gave it to him. Claiming the surgeons were not its employees, the hospital denied responsibility.

The jury returned a verdict of $7.2 million, finding negligence by the surgeon, the assistant surgeon, and the surgical technicians. The lawyer who wrote about the case pointed out the obvious negligence associated with leaving a foreign object in a patient. She also said that defendants who blame each other are not likely to succeed unless there is clear evidence that one defendant caused the problem. She said, “Once jurors see ‘dueling defendants’ they most often assume the worst happened and find blame all around.”

Here’s a similar case with a slightly different twist.

After 3½ hours of deliberation, a Connecticut jury returned a $12 million verdict against a hospital and one of its surgical residents. The patient was a 65-year-old woman who suffered an injury to her colon during a routine laparoscopic hernia repair.

The complication, which occurred in 2008, was not recognized until the patient became septic postoperatively. She had a difficult hospital course, which included coma and multiple reoperations, and is described as having continued digestive problems.

The plaintiff contended that she was unaware that a resident would be involved in the case. One report said he had been called to assist with the case after it started.

Here’s the twist. Before the trial began, the attending surgeon settled for an undisclosed amount. The plaintiff’s attorney told the jury that the resident had caused the problem, and the former resident, who is now a hand surgeon in the Midwest, said the attending surgeon did it.

The hospital had taken a position that it wasn’t responsible for the acts of its residents. Although attending surgeons shoulder much of the burden of direct resident supervision, hospitals have usually been judged to be liable for the acts of residents if such acts pertain to patient care.

It is difficult to comment without more details, but both of these cases were exacerbated by not only the dueling defendants, but also the failure to recognize and treat serious complications soon enough.

Neither case appeared defensible. The only reason to go to trial would have been if the plaintiffs refused settlement offers from the defendants.

Maybe this issue will disappear once all doctors’ practices have been taken over by hospitals. Until then, dueling defendants will continue to make it easy for plaintiffs to win cases.