The uncontested evidence during trial established that Robert Santaella, M.D. surgically removed a mass from
Emily Abney-Acosta’s abdomen, and a sponge remained in her abdominal cavity after the surgery. During the months following the surgery, Santaella and other physicians aspirated a seroma that developed at the surgical site but did not identify the retained sponge. Approximately seven months after the surgery and after the wound had healed, Abney-Acosta experienced abdominal pain and Santaella ordered a new CT scan. Rather than having the CT scan performed, Abney-Acosta sought a second opinion. The new doctor identified the retained sponge and surgically removed it, thus resolving Abney-Acosta’s symptoms. The Texas medical malpractice jury did not find Santaella was negligent, and Abney-Acosta filed an appeal.
In its October 24, 2023 Memorandum Opinion, the Court of Appeals Fifth District of Texas at Dallas (“Texas Appellate Court”) stated: “Santaella testified surgeons do not participate in counting sponges before or after the surgery, and he “definitely depends on” the sponge count. However, before closing any surgical incision, Santaella inspects the incision for retained instruments, including sponges; he inspected Abney-Acosta’s incision before closing. Santaella testified that, if Bailey had told him the sponge count was off, then he would have re-examined the area and, if he did not find the sponge, then he would have brought in an x-ray machine to find the sponge before he closed. Santaella speculated that, as part of Abney-Acosta’s surgery, he divided the abdominal muscle and the muscle retracted. “And so the only way I feel like we could not have seen this Ray-Tec or palpitated it is that it retracted down the muscle . . . because we definitely could not see or feel that mass at all.” He explained the Ray-Tec sponges are absorptive and become the color of the liquid around them, and the sponges feel similar to surrounding tissue.”
Dr. Minh Nguyen, a general surgeon, who treated Abney-Acosta following her surgery, testified Abney-Acosta’s post-operative symptoms, including swelling, fluid collection, reopening of the surgical incision, and the site not healing
timely or correctly, were “a hundred percent related to” the retained sponge. Nguyen testified a surgeon must obtain an accurate sponge count, and he never solely relies on the sponge count performed by other people.
Abney-Acosta’s expert, Dr. Mayer, placed the blame for the retained sponge and failure to identify it squarely on Santaella; Mayer explained why he believed Santaella’s treatment of Abney-Acosta during surgery and afterward fell below the standard of care. Mayer’s expert testimony was countered by testimony from Bailey, Santaella, and Clifford. Bailey and Santaella testified Bailey was responsible for ensuring the sponge count was correct, Magras was responsible for documenting the count, and Santaella inspected the incision before closing. Santaella and Clifford explained that Santaella could rely on the sponge count provided by the scrub technician during surgery. They also testified Santaella could reasonably rely on the information he received from the emergency room physician and hospitalist about Abney-Acosta’s condition after surgery, and Santaella did not act negligently by not reviewing the September 29 CT scan and report. Santaella’s reports show AbneyAcosta’s condition was improving in October, she did not request a refill of her pain medication, and the other medical professionals she saw did not identify any abdominal concerns.
The Texas Appellate Court stated, “The jury was free to credit testimony from Santaella, Clifford, and Bailey instead of Mayer’s testimony … Having reviewed all of the evidence and applying the appropriate standards of review, we conclude the evidence is both legally and factually sufficient. Abney-Acosta bore the burden of proof at trial, and the record does not conclusively establish all vital facts to support a negligence finding against Santaella. See Porter, 622 S.W.3d at 834 (legal sufficiency). Likewise, the jury’s verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.”
Source Abney-Acosta v. Santaella, M.D., No. 05-22-00813-CV.
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