The Treating Physician and the Hospital Are Legally Responsible for Retained Foreign Items Left In the Body After an Operation

Written by Adam Peck Category: Injury Law January 16th, 2013 4 min read

As written in the California Department of Public Health Case # CA220000022:
“The Association of periOperative Registered Nurses, or AORN, is an organization with input and liaisons including CDC (Centers for Disease Control), Association for Professionals in Infection Control and Epidemiology, American College of Surgeons, American Society of Anesthesiologists and the American Association of Ambulatory Surgery Centers. The AORN position papers, standards and recommended practices are widely used not only in the perioperative clinical setting but as an authoritative guide to clarify regulatory requirements.” According to AORN, retained objects are considered a preventable occurrence with careful counts significantly reducing, if not eliminating, these incidents. AORN standards and recommended practices are the basis for OR Policy & Procedure nationwide, in other countries and on other continents.

Mrs. Lee’s Never Event of Retained Foreign Body could have occurred during initial pump placement 12/21/11, but I do not believe this to be the case since exploration of the pump pocket occurred during 01/04/12 procedure. Both were performed by Dr. Schwartz who admitted use of Penrose Drain during this type of procedure but denied use during Mrs. Lee’s surgery – without stating which surgery. The Penrose Drain, or the “synthetic plastic-appearing” nearly 3 inch material, was used to guide/slide/assist the pump back into the pocket and then removed by Dr. Schwartz with a quick tug or similar motion. I further believe this object was handed/passed/left in view of Elmer Nigel RN Scrub. Mr. Nigel then picked up the object and, without careful examination to ensure it was intact, placed it in a basin of water or saline to maintain flexibility. When the closing count was performed I do not believe Mr. Nigel RN, or the other RNS gave it a second look or thought.

Something else about this sloppy count procedure is of concern. The initial count – 1st – is performed before skin incision. The 2nd count is performed when closure begins on a cavity within a cavity (i.e., aorta in the chest) and/or before wound closure begins. The 3rd count is performed when the skin is closed or at the end of the procedure. Counts are also performed when a member of the surgical team (i.e., circulator or scrub) is relieved. Documentation from both 12/21/11 and 01/04/12 procedures describe the 2nd count as not applicable. I do not know if this is in keeping with CVMC Policy & Procedure but this is not what I am accustomed to seeing.

Dr. Schwartz attempted to deflect the blame from him and place it squarely on the CVMC ED. What is telling is that he informed Mr. & Mrs. Lee of the event and there is no Discharge Summary in the medical record. Is it that Dr. Schwartz is slow to dictate the hospital course or is he not quite ready to admit he was partly responsible for the Retained Foreign Body?

And although Dr. Schwartz is just as responsible as others on the surgical team, it is also the responsibility of the scrub and circulator to perform a proper count and NOTIFY the surgeon, immediately, of any discrepancies. It would not be out-of-the-ordinary for a surgeon to remove a Penrose Drain, or other such object being used intraoperatively but not intended to remain in the wound, and rely on the scrub to examine the integrity to ensure it was intact. This is where the breakdown occurred–the scrub and the circulator. Both should have had eyes on everything that was part of the sterile field pre, intra, and postoperatively (at skin closure) to ensure integrity of items and prevent Retained Foreign Body.

Just as damaging is the fact that Mrs. Lee, who was beginning to enjoy a bit more independence with the pain pump, was forced to revert to Oxycontin use and, more than likely, increased pain.

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Written by Adam Peck

Expertise: Personal Injury

Adam J. Peck, ESQ is a principal with Peck Law Group, APC. In 2008, Mr. Adam Peck received his Juris Doctorate from Whittier Law School where he graduated Cum Laude. His practice is primarily dedicated to representing Elders, Dependent Adults, along with their loved ones and family members, who have suffered horrific personal injuries.