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Legally Speaking: Dueling defendants in retained foreign object case




MS. COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to


In 2009 a gynecologist performed a hysterectomy on a 61-year-old New York woman. The doctor was assisted by a second gynecologist, a nurse, and 2 surgical technicians. During the procedure the surgeon noted bleeding from the uterine artery and converted to an open procedure immediately. The bowel was retracted with the insertion of a blue towel. The artery was repaired and the operation completed. After the surgery, the patient had fever, odorous discharge, and abdominal pain. A month later a reoperation revealed that the towel used for bowel retraction had not been removed. The patient’s surgical wound required open healing and a temporary colostomy. After the colostomy reversal she developed an incisional hernia and the hernia repair required resection of a small portion of her bowel.

The woman sued all those involved with the original operation and claimed that they should have ensured that the towel was removed and that its placement inside her abdomen was inappropriate. She also contended that the gynecologist had failed to adequately clamp or suture the uterine artery.

One of the surgical technicians claimed that she did not provide the towel and did not see the towel used, so she was not aware that it had to be accounted for. She also maintained that its color indicated that it lacked a radiopaque tag and that hospital policy forbade use of those towels in an open wound. The hospital contended that the surgeons had inserted the towel and because they were not employees, the hospital was not responsible. The surgeon claimed that he specifically requested a blue towel, that the surgical technician provided the towel, and that the towel’s use in an emergent situation was necessary and had prevented the patient from bleeding to death.

The verdict

A jury found negligence by the surgeon, the assistant, and the surgical technician and a $7.2 million verdict was returned.


It is, of course, negligent to leave a foreign object in a patient’s body during surgery, and these cases are usually limited to determining the amount of damages to be paid, and most often settle without a jury trial if a reasonable amount can be agreed upon. In this case, 2 of the defendants blamed each other in an attempt to get themselves off the hook, a scenario that is usually not successful, and especially not in front of a jury. Unless there is definitive evidence that one defendant is solely responsible, once jurors see “dueling defendants” they most often assume the worst happened and find blame all around.

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