Oops. I forgot something.

What happens if a physician does something that almost anyone would consider malpractice, such as leave a sponge behind during surgery? In practice, law is never entirely predictable and different states may handle the same situation differently. Law can be frustrating to those who prize logic and consistency.

Georgia law is certain about one thing in medical malpractice: No matter how obvious a case of malpractice might be, an expert affidavit must accompany a lawsuit at the time it is filed. A lawsuit can only be initiated with the sworn statement of a well qualified physician that asserts that the defendant doctor made an avoidable mistake, or to use the legalese, deviated from the standard of care. In Georgia, it doesn’t matter how obvious the doctor’s mistake was and, if a defendant doctor disputes that he made a mistake—no matter how absurd his defense may be—he will get his day in court. But, it doesn’t work the other way around. A judge has many ways to throw out an injured patient’s medical malpractice lawsuit despite its being filed with a perfectly good affidavit.

Some states still use the doctrine of res ipsa loquitor, which essentially says that if the doctor does something as dumb as a box of rocks, the patient need not attach an expert affidavit to his medical malpractice lawsuit. Arkansas still adheres to this principle, but as a recent court of appeals case explains, the res ipsa doctrine doesn’t get you very far these days.

Dr.Marc Rogers performed gallbladder surgery on Alan Sargent. Two years later, Sargent underwent a second surgery to remove a sponge that was left in his belly. He filed a lawsuit for medical malpractice against Dr. Rogers then asked the judge for summary judgment on what seemed to be a pretty obvious case of malpractice. The judge agreed, granted summary judgment on the issue of negligence and held a jury trial on the matter of damages only. The jury awarded Sargent $100,000, but Dr. Rogers appealed.

You see, Dr. Rogers said he hadn’t done anything wrong. He even submitted the affidavit of a colleague who said that it’s perfectly fine to rely on the nurse’s sponge count and besides, the sponge was left “in a relatively inaccessible region of Sargent’s abdomen,” so it would have been hard for Dr. Rogers to see it. I kid you not.

The only problem was that Arkansas had a hoary old supreme court case that pretty much described this surgical fiasco as the quintessential example of medical malpractice, and even made the point that a doctor may not slough his responsibility for getting the sponge count right onto his nurse. The appeals court had to work overtime to overturn this jury verdict and, alas, it did.

The court ruled that yes, Sargent did not need expert testimony to show that Rogers had been negligent. But, just because Sargent didn’t need to bring an expert to court and that he could rely upon the common experience of the jury, it didn’t prove that malpractice had actually been committed. Because Rogers raised an argument of fact, it would have to be up to a jury to decide whether malpractice had actually been committed. Reversed and Remanded!

Whew! I think I understand that logic, but in the immortal words of Groucho Marx: “A child of five would understand this. Send someone to fetch a child of five.”

Article first published as Forgetfullness and Medical Malpractice on Technorati.

Glenn L. Goodhart, M.D., J.D.

6065 Roswell Rd.

Northside Tower
Suite 410

Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148
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2 Responses to Oops. I forgot something.

  1. Pingback: What’s Fair in Texas | Public Protection Lawyer's Blog

  2. john says:

    makes me want to drink alchoholic beverages

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