What’s Fair in Texas

No sooner do I write about the Arkansas Court of Appeal reversing a $100,000 verdict for leaving a sponge in someone’s belly than a Texas jury awards $4.08 million to another victim for the same blasted thing. Both of these misadventures involved cholecystectomies, i.e., gallbladder surgeries.
Dr. John Barber did a cholecystectomy on Ronald Molder at Del Tar Hospital Navarro in Victoria, Texas, a town slightly south and roughly equidistant from San Antonio and Houston.


Two problems occurred: Somehow the doctor left Molder’s gallbladder in place and managed to leave a sponge behind, too. According to Dr. Barber’s lawyer, there was an “abnormal mass” where the gallbladder was supposed to be. The doctor removed the so-called mass and Molder seemed to get better post operatively.

A few months later, of course, Molder was rushed back to the hospital horribly sick. He spent the next 80 days in the hospital and received $290,000 in medical bills.

The jury found Dr. Barber not liable and put the entire blame on the scrub nurse. I guess I’ll never totally understand juries, no matter how much I study them.

Del Tar’s lawyer, Ann Watson, apparently made a disastrous tactical error, however, by arguing that because Molder had belly problems before he even arrived in December, the jury should only give him “what’s fair.” One thing I do know about juries: They resent it when a defense attorney tries to blame the victim over something he couldn’t possibly control. I guess that Texas jury showed her what’s fair.

This case amply demonstrates how law varies from one region to another. Arkansas courts, as a matter of law, will not allow a doctor to shuck his responsibility for getting the sponge count correct onto a nurse. He’s captain of the ship and he goes down with the ship. I liked the way one of the newspaper’s readers put it:
Many years ago I was an Air Traffic Controller in the USAF. An old wise sergeant told me, “Make a mistake baking a pie and you wind up with a bad pie; make a mistake in your job and you just may have killed a bunch of innocent people.”

Article first published as What’s Fair in Texas on Technorati.

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

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