February 6, 2022

The Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) held in its opinion rendered on January 7, 2022 in a medical malpractice case where the plaintiff was awarded a sizeable verdict due to an 18-inch by 18-inch sponge that was left inside of her after surgery, that the defendants “were not entitled to instructions on apportionment of fault or mitigation of damages,” stating in support of its holding: “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. She was a poor patient prior to the bypass surgery, and Appellants knew Boerste might ultimately need to have her lower leg amputated at the time of the bypass surgery.”

The Underlying Facts

Carolyn Boerste had a history of peripheral vascular disease, hypertension, and diabetes. Her health conditions caused a wound on her toe to become infected and gangrenous. Dr. Marvin Morris recommended an aortobifemoral bypass surgery to improve circulation in her lower extremities and informed her she may need future surgeries, including amputation. In March 2011, Dr. Morris and a surgical team performed the bypass surgery at University Hospital. The surgical team left a laparotomy sponge (18-inch by 18-inch) in her abdomen, which was not removed until November 2016.

On May 18, 2017, Boerste filed a Kentucky medical malpractice lawsuit against Dr. Morris, University Hospital, and the hospital’s employees who performed the March 2011 surgery. Boerste also alleged claims against other medical professionals who failed to act on a radiologist’s report that identified the retained sponge in her body in March 2015 and who otherwise contributed to her injuries. Boerste alleged she sustained injuries due to the retained sponge, including diarrhea, vomiting, nausea, and ultimately leg amputation. Boerste argued the sponge removal surgery resulted in amputation of her leg because she developed wounds on her lower extremities while bedridden following the removal of the sponge.

On the first day of trial, in December 2019, University Hospital conceded liability for leaving the sponge in Boerste’s abdomen. As to the Hospital, the only remaining issue was damages, including punitive damages. As to Dr. Morris and the three other defendants, both liability and damages remained at issue. Following a ten-day trial, the jury found Dr. Morris liable as well as two other defendants who were not before the circuit court. The jury found in favor of an emergency doctor who participated at trial. The jury apportioned 60% liability to the Hospital, 10% liability to Dr. Morris, and 30% liability to the two other defendants. The jury awarded Boerste $9.5 million in damages and an additional $1 million in punitive damages for a total verdict of $10.5 million.

Kentucky Appellate Court Opinion

Punitive Damages Award

The Kentucky Appellate Court stated with regard to the plaintiff’s claim for punitive damages against the Hospital, “when a plaintiff seeks punitive damages against an employer for the actions of its employees, KRS 411.184(3) applies: “In no case shall punitive damages be assessed against a principal or employer for the act of an agent or employee unless such principal or employer authorized or ratified or should have anticipated the conduct in question.””

The Kentucky Appellate Court stated in the case it was deciding: “Evidence at trial showed a “wanton or reckless disregard,” both through the nurses’ actions and inactions and University Hospital’s failure to provide adequate directions regarding sponge counts. There was significant confusion among the nurses as to how to document the sponge counts. In general, the nurses use a perioperative nursing record to document the surgical procedure. That record has a place to document some but not all the sponge counts required by University Hospital’s policy. The nursing record has nowhere to document sponge counts that are supposed to occur at every break, lunch, and shift change … Boerste presented sufficient evidence that University Hospital should have reasonably anticipated a sponge might be left in a patient when the worksheets provided to surgical teams did not include a place to record all sponge counts required by its policy.”

However, the Kentucky Appellate Court further stated: “The punitive damages instruction did not include the KRS 411.184(3) language requiring a finding that University Hospital “authorized or ratified or should have anticipated the conduct in question” … Thus, we hold the circuit court erred as a matter of law in failing to include this language in the punitive damages instruction. On remand, the circuit court must include either the common law or KRS 411.184(2) standard for punitive damages and the KRS 411.184(3) language.”

“Never Events” Testimony

The Kentucky Appellate Court further held: “the “probative value” of testimony regarding “never events” “is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury[.]” The jury did not need this evidence to find Boerste was entitled to punitive damages, so evidence of and reference to “never events” should be excluded on retrial.”

Morris v. Boerste, No. 2020-CA-0646-MR.

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