Retained Surgical Sponge at Issue in Cefaratti v. Aranow

Gregg Hollander | June 30, 2016 | Medical Malpractice

“Retained surgical sponge” is the technical term used when a surgeon accidentally leaves a gauze-like sponge inside a patient after a surgical procedure.

It’s called a “never event” because it’s one of those things that is totally preventable and therefore never supposed to happen. And yet, these types of medical errors are noted all the time. The actual true incidence of retained surgical items – including sponges – isn’t known. However, there are two large-scale studies that put it somewhere between 1 in 5,500 operations and 1 in 6,975. That may not sound like much, but there are millions of surgical procedures conducted annually, and the average liability in these cases is about $473,022, according to the Risk Management Foundation of the Harvard Medical Institutions, Inc.

In the recent case of Cefaratti v. Aranow, the issue was whether a woman who suffered injury as a result of a retained surgical sponge that was left inside her following a gastric bypass surgery. The issue was whether she could pursue legal action against the allegedly negligent doctor, from whom she also received follow-up treatment once the sponge was discovered years later, despite it seeming apparent the statute of limitations for medical negligence had passed.

According to Connecticut Supreme Court records, plaintiff underwent gastric bypass surgery in 2003 after she was diagnosed as morbidly obese. Plaintiff had numerous follow-up visits with her surgeon after the surgery was completed. Plaintiff complained in all but the first two visits of discomfort and twisting sensations in her abdomen. Although she did not know at the time what was wrong, she explained she could barely bend over without feeling as if something was caught on her ribs. At times, she said, “It felt like I was carrying a child.” Bowel movements, she said, were extremely painful.

However it wasn’t until 2009, when she was diagnosed with breast cancer, that she underwent a scan of her chest, abdomen and pelvis and it was at that time that the sponge was discovered. She then returned to the original surgeon, who conducted corrective surgery to remove the sponge.

Soon after surgery, plaintiff said she felt much better.

The following year, she filed a medical malpractice lawsuit, alleging the surgeon had failed to remove the sponge during the surgery and that both he was directly liable for negligence and the surgical center and staffing agency were directly and vicariously liable.

Soon after, defendants filed motions for summary judgment, arguing not only had the statute of limitations passed, so had the statute of repose. The statute of limitations gives a finite amount of time one can file a civil lawsuit, but it can be tolled if there was no way the patient could have known they were ill or what caused it or who was responsible. The statute of repose, however, is the absolute cut-off date.

But in this case, plaintiff argued the continuing treatment doctrine. The continuing/ continuous treatment doctrine postpones the start of the statute of limitations until treatment in respect to a particular ailment is finished. The idea is to allow defendants the opportunity to correct he mistake before the patient initiates a lawsuit to recover for harm.

In this case, the lower court granted motion for summary judgment, but the Connecticut Supreme Court reversed. The case will now move forward.