Dayton Jury Finds Surgical Team Left a Sponge Inside a Patient, But Awards Only $100,000. Why?

Published August 5, 2014 · Verdicts & Settlements

A surgical sponge does not belong inside a patient after the incision is closed. Everyone in an operating room knows it, and counting sponges is one of the oldest safety rituals in surgery. So when a Montgomery County jury recently found that a sponge had been left inside a Dayton woman for months, you might expect a large verdict. Instead the jury awarded $100,000 and nothing at all on the family's wrongful-death claim. The result is a lesson in how medical cases are actually decided.

What the jury found

As reported by WHIO-TV on July 21, 2014, a Montgomery County Common Pleas jury awarded $100,000 to the family of Eugenia A. Snowden. According to the report, Ms. Snowden underwent a 17-hour surgery at Miami Valley Hospital in late February 2009. A laparotomy sponge was left in her abdomen, and court documents cited in the report indicated it remained there for about seven months, through two failed attempts to remove it. She died roughly 15 months after the surgery.

Her husband, Dennis K. Snowden, filed suit in 2010 for medical malpractice and wrongful death. The original filing named Dr. Akpofure "Peter" Ekeh, Wright State Physicians, and a number of scrub technicians, nurses, and other medical personnel. The surgical team was led by a Wright State Physicians doctor.

The jury, according to WHIO, found that the retained sponge was a proximate cause of injury to Ms. Snowden. But it also found that the sponge did not cause her death. It awarded $100,000 on the injury claim and nothing for loss of consortium or on the wrongful-death claim. Wright State Physicians had denied that the sponge caused her further medical problems or her death.

We did not handle this case, and we are relying only on the published report. But the shape of the verdict is familiar to anyone who tries medical cases, and it is worth explaining.

Negligence was the easy part; causation was the fight

A medical-malpractice case has three pieces. The patient must prove the provider fell below the standard of care, that the failure caused harm, and what that harm is worth. Lawyers call these breach, causation, and damages.

A retained sponge is close to the easiest breach case there is. There is no medical reason to leave a sponge inside a patient, and the counting procedures exist precisely to prevent it. Defense lawyers rarely spend much energy arguing that leaving a sponge behind is acceptable care.

The battle is causation. Here the patient had undergone a 17-hour surgery, which tells you she was already seriously ill. She died 15 months later. The family's experts had to persuade the jury that the sponge, and the months it stayed inside her, caused or contributed to her death. The defense experts argued that her underlying illness was the cause and that the sponge, while a real injury, did not shorten her life. The jury accepted the defense version on death and the plaintiff's version on injury. That split explains the number.

Why the wrongful-death claim and the consortium claim came up empty

Ohio recognizes two different claims when a person dies after medical negligence. The first is the injured person's own claim for the pain, suffering, and expense she endured before death, which survives her and is brought by the estate. The second is the wrongful-death claim, which belongs to the surviving spouse, children, and parents for their own losses. We explained who can bring a wrongful-death claim and what can be recovered in an earlier post.

The wrongful-death claim requires proof that the negligence caused the death. Once the jury found the sponge did not cause Ms. Snowden's death, that claim had to fail, no matter how clear the negligence was. The $100,000 represents the jury's valuation of what she went through because of the retained sponge: the additional procedures, the pain, and the months of living with a foreign object inside her.

The loss-of-consortium award of zero is harder to explain from the outside. A spouse's consortium claim compensates the loss of companionship, care, and support caused by the injury, as we described in our post on loss of consortium. Juries sometimes fold that loss into the main award, and sometimes they decide the evidence of a separate marital loss was thin. We do not know which happened here. What we do know is that consortium claims need their own proof: testimony about what the marriage was like before and after, not just an assumption that a spouse suffered.

What this result teaches about case value

Families understandably think a case begins and ends with the obvious error. It does not. In a medical case, value is driven by what the error caused, and that is a question experts answer.

• The experts decide the case. A retained-object case with a long, well-documented decline lives or dies on whether a qualified physician will testify, convincingly, that the object caused the decline. If the patient's underlying disease provides an alternative explanation, the defense will have an expert ready to say so.
• The medical records tell the story, good or bad. Every note in a 15-month chart becomes evidence. Entries that attribute symptoms to the underlying illness rather than the sponge will be read to the jury.
• Timing matters. A surgery in 2009, a death in 2010, a lawsuit in 2010, and a verdict in 2014 is a typical timeline. Ohio's medical claims carry a one-year limitations period and a four-year outer limit called a statute of repose, which we explained in our post on the four-year wall. Families who wait lose the option entirely.
• Damage caps loom over every medical case. Ohio caps noneconomic damages in medical claims, which is one more reason the causation fight is so important: the categories of damages that survive a causation challenge determine what the family can actually collect.

None of this means the Snowden family was wrong to bring the case. A jury found that medical providers injured a patient with a sponge they should never have left behind, and it said so publicly. That accountability matters. But the verdict shows why these cases must be built from day one around causation, with the right specialists, rather than around the error alone.

What this means for you

If you or a family member suffered a retained surgical object, a wrong-site surgery, or any other clear surgical error, do not assume the obviousness of the mistake will carry the case. The hospital's insurer will concede nothing on causation. The records must be gathered immediately, the treating physicians' opinions must be pinned down, and independent experts must be retained before memories and documents fade. Our pages on wrongful-death claims and personal injury describe how we approach these cases.