In October, 2013 The Joint Commission (TJC) released a sentinel event alert pertaining to the prevention of retained surgical items. These retained items could have serious consequences for the patient. According to The Joint Commission Sentinel Event Alert, 2013 Issue 51, incidents of retained objects reported to TJC totaled 772 from 2005 to 2012, sixteen resulting in death and 95 percent of these cases requiring additional treatment. Over the course of my seventeen year career as an operating room circulator, the fear of being involved in a case resulting in a retained surgical item was always on my mind.
This fear sparked my interest in researching a legal case involving a retained surgical sponge ultimately resulting in the patient’s death. I will present the case, provide an analysis, and the outcome of the Estate of Genrich versus Ohio Insurance Company, 2008 WI 67. Case Summary In July 2003, a male patient underwent abdominal surgery for an ulcer. He developed an infection and on August 8, 2003 it was determined a surgical sponge was left in the abdomen. He was taken to the operating room in order to remove the retained sponge.
After this surgical procedure, he did not recover from the complications of sepsis and the patient died on August 11, 2003. His wife filed a law suit on August 9, 2006 against the doctors and staff involved in the initial surgery (Estate of Genrich v. Ohio Ins. Co. , 2009). RETAINED SURGICAL SPONGE 3 Analysis In my opinion, given the facts of this case, the wife had legal grounds for a lawsuit. Hardwired systems are in place in the operating room to prevent the adverse event of a retained surgical sponge. The surgical count is a standard procedure in operating rooms.
As stated by Steelman and Cullen (2011), retained sponges continue to be an issue throughout the country. In cases involving retained sponges, the nursing documentation reflected the count as being correct. In my experience, counting is a standard of care in the operating room. The operating room circulator counts with the surgical technician to ensure that all sponges are accounted for at the conclusion of the case. The surgeon relies on the staff in the room to identify surgical counts as correct or provide notification of incorrect counts.
Based on this information and upon a initial review of this case, I had no doubt the wife would receive monetary compensation for her lawsuit. The incident of a retained surgical sponge is negligent, and according to Stiller, Thompson, and Ivy (2010), fail to uphold the standards of patient safety and quality, resulting in the liability of the health care professional. Outcome To my surprise, the Supreme Court of Wisconsin ruled in favor of Ohio Insurance Company based on the fact that the state of Wisconsin has a three year statute of limitation.
To make this judgement even more complex, the wife filed her lawsuit on August 9, 2006, two days under the three year anniversary of his death (Estate of Genrich v. Ohio Ins. Co. , 2009). However, the court concluded that his injury resulted from the retained sponge, was the start of the three year limitation. The initial surgery occurred on July 24, 2003. The court determined that the negligent act occurred during the initial surgery. The sponge that was left in the RETAINED SURGICAL SPONGE 4 abdomen caused the infection which ultimately resulted in the patient’s death (Estate of Genrich v.
Ohio Ins. Co. , 2009). Conclusion In my opinion, the legal system failed in this case. One fact missing during the research of this case is the reason the wife waited three years to file a lawsuit. I found myself continuing to ask why the lawsuit was not filed immediately upon her husband’s death. Regardless of this fact, the wife suffered the loss of her husband due to the negligence of the physician and staff. Granted, when humans are involved, error is inevitable. One can hope that there will be understanding by the victims of the human error factor.
However, the fact is the sponge should have been counted prior to incision and upon abdominal closure. A discrepancy should have been noted and it was not. The court concluded that the moment the sponge was left in the abdomen, the legal clock started ticking. In my opinion, a wrongful death lawsuit can only be filed when a death has occurred, not when the incidents leading to the death occur. If this had been the case, the wife would have met the statute of limitations and the judgement possibly would have been in her favor.