The retained surgical sponge case is probably the most classic example of clear-cut medical malpractice. When a surgeon or nurse leaves a surgical sponge or instrument inside a patient’s body during surgery, Pennsylvania law recognizes that this is an error so obviously beneath accepted standards of care that the usual rules requiring a Plaintiff to have a medical expert are relaxed.
We would all like to think that these kinds of medical mistakes are uncommon. The Pennsylvania Patient Safety Authority (PSA), in a startling report issued recently, tells us otherwise. Here is a link to the report. http://patientsafetyauthority.org/ADVISORIES/AdvisoryLibrary/2012/Sep;9(3)/Pages/106.aspx.
In 2011, there were a shocking 452 reported cases involving a retained sponge, medical instrument, surgical needle or other item, according to the PSA’s September 2012 advisory, “Update on the Prevention of Retained Surgical Items.” The Advisory also reports on various measures different organizations have recommended to suggest clearer hospital guidelines. The hope is that more coherent hospital policies will reduce this incidence of retained surgical items.
For a number of reasons, I don’t believe guidelines and policies alone are sufficient to address this problem.
Why do conservative politicians and lawmakers continue to bark about the need for medical tort reform? Why does ALEC and other corporate lobbying groups want so badly to limit the rights of those most seriously injured because of medical errors? After all, every legitimate study shows that the “cost” of medical liability payments to those who are the victims of medical malpractice represents but a nanoparticle out of total annual health care costs.
When the administrative office of Pennsylvania’s court system issues data on the numbers of case filings, the number of medical malpractice cases is consistently down from its high points. Data on the results of jury verdicts, even in the “judicial hellhole” that is Philadelphia (as characterized by tort-reform proponents), show a overwhelming advantage for the defendant doctor or hospital.
Even prominent tort reform advocates admit, when pressed, that our legal system is not being inundated with frivolous medical malpractice claims. Victor Schwartz, the general of the American Tort Reform Association, one of the most influential voices for curbing the rights of victims of tort reform, has conceded: “It is ‘rare or unusal’ for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring.”
Why do Republicans continue to press this issue then? The answer, plain and simple, is money. Any rule or restriction that limits recovery for those injured by medical mistakes – such as a cap on the amount of monetary damages a plaintiff may recover in a civil lawsuit – means more money in the hands of medical malpractice insurance companies.