LEXINGTON, Ky. (Legal Newsline) – A Kentucky jury’s $10.5 million verdict will remain largely intact in a lawsuit brought by a late woman who had a surgical sponge left in her abdomen during surgery.
The state Court of Appeals on Jan. 7 affirmed most of the findings of a Jefferson County jury but said it was erroneously instructed on the issue of punitive damages, rejecting pleas by University Medical Center and Dr. Marvin Morris to strike down the verdict.
The compensatory damages portion of the verdict totaled $9.5 million, while the jury awarded only $1 million in punitive damages. UMC conceded liability during the trial, leaving punitive damages as the only issue remaining while Morris fought both.
Morris performed surgery on Carolyn Boerste in 2011 to improve circulation in her lower extremities but a sponge was left behind. She sued UMC, Morris and two radiologists who failed to find the sponge in 2017.
Boerste passed while the appeal was pending, and her son is representing her estate.
“(The defendants) failed to present evidence to support an instruction on either apportionment (on Boerste’s part) or mitigation,” Judge Pamela Goodwine wrote. “No one knew a sponge was retained in Boerste’s abdomen, so she was not given specific instructions for follow-up care regarding the sponge.
“The evidence showed her body reacted to the foreign object and attempted to eliminate it. The retained sponge moved through her abdominal cavity and intestinal wall causing nausea, vomiting and excessive diarrhea for five years.
“Ultimately, Boerste underwent surgery to remove the sponge, which she had to recover from. The fact that Boerste was a poor patient who failed to properly treat her diabetes is irrelevant.”
At the hospital, there was “significant confusion” by the nurses as they documented the sponge counts, Goodwine wrote, adding there was sufficient evidence to provide an instruction on punitive damages to the jury.
But the instruction did not include state law language requiring a finding that UMC “Authorized or ratified or should have anticipated the conduct in question,” Goodwine added.