Woman who had sponge left inside her for seven years granted another trial by Mississippi high court

By Charmaine Little | May 15, 2018

JACKSON, Miss. (Legal Newsline) – The Supreme Court of Mississippi ruled that a woman, Doretha Thompson, was legally permitted to another trial in a medical malpractice lawsuit based on an April 26 opinion.

Thompson filed her claim after the DeSoto County Circuit Court ruled in favor of the defendants after a jury’s verdict in the lawsuit. The high court agreed with the plaintiff that the jury in the trial was not correctly briefed on the law.

Thompson sued Baptist Memorial Hospital DeSoto Inc. (BMH-D) and James Fortune, M.D. after it was revealed a surgical sponge was accidentally left in her abdomen following a 2004 procedure in which Fortune removed Thompson’s gallbladder. The sponge was found in 2011 after Thompson went to an emergency room and said she was experiencing stomach pain, the opinion states.

The opinion states that while Fortune admitted to accidentally leaving the sponge in Thompson’s abdomen and that the accident is what caused her issues in 2011, he insisted he met the standard requirements for the 2004 procedure. He said it was not a requirement for him to monitor how many surgical sponges he used in Thompson’s gallbladder removal. Instead, he alleged he depended on a nurse and scrub technician’s sponge count.

Even though Thompson expressed many issues with the case, the sole factor the Supreme Court agreed with was the jury’s knowledge of law in the trial. Thompson pointed out the lower court erred when it did not consider two points of jury instruction for the jury.

The trial court stated both of the instructions were not valid and that some of the wording might not be clear with the jury. While the Supreme Court agreed the language could be confusing, it disagreed that the instructions are irrelevant and stated each one is within in the state law.

The first instruction indicated that if evidence proved Fortune left the sponge in Thompson, he will have to challenge the argument that he was negligent. It also stated if Fortune does not argue against negligence, and that “the failure to remove the sponge was the sole proximate cause or proximate contributing cause of [Thompson’s] injury,” the jury should rule on Thompson’s behalf, the opinion states.

The second jury instruction the trial court refused stated that if Fortune’s reasoning for how the sponge was left in Thompson’s abdomen was not “reasonable,” as well as the above argument concerning the failure to remove the sponge, then the jury should rule in favor of Thompson.

The Supreme Court reversed the circuit court’s ruling and remanded it for a new trial with proper jury instructions.

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