Submitted by Elaine Magliaro, Guest Blogger
(Updated Below)
Imagine that you have end-stage renal disease and that you need a new kidney in order to survive. Imagine that a perfect match has been found for you—a kidney from your younger brother. Imagine that you and your brother are admitted to the University of Toledo Medical Center (UTMC) for kidney transplant operations. Imagine waking up after surgery and discovering that your brother’s kidney was removed from his body but not transplanted into yours.
All this actually happened in August of 2012 to a twenty-four-year-old woman named Sarah Fudacz. Fudacz said that she knew something had gone wrong as soon as she was being led out of surgery. “I lifted up my shirt and there was no incision.” She and her brother found out later that a nurse had mistakenly thrown away her brother Paul’s healthy kidney thinking that it was medical waste.
“Somebody wasted part of my brother,” Sarah Fudacz said. “I thought this was going to be the end of it and I’d finally start feeling better. I remember just asking over and over again, what happened?”
From the New York Daily News:
The bungle happened when circulating nurse Melanie Lemay, who was covering for part-time nurse Judith K. Moore during her lunch break, failed to properly update Moore on the status of the surgery after she returned from her break, according to hospital disciplinary records obtained by the Toledo Blade. Moore then unknowingly discarded the kidney along with other contents of the slush machine. The kidney was recovered but was unusable.
The Toledo Blade reported that Ms. Moore, a part-time nurse, resigned last September and Ms. LeMay, a full-time registered nurse, was fired by UTMC. Susan Donaldson James of Good Morning America also reported that the medical center’s administrator of surgical services was placed on paid administrative leave. UTMC’s live-donor program was temporarily suspended after a state investigation. According to a complaint that was filed in the Ohio Court of Claims in early August, “Lemay is now suing the hospital for wrongful discharge, defamation, slander and libel.”
Fortunately, UTMC eventually arranged for Sarah Fudacz to receive another kidney. The medical center also paid for her transportation to Colorado for her transplant operation in Denver last November. But the Fudacz family alleges in a lawsuit that, in the months between the disaster at UTMC and Sarah’s successful surgery in Denver, Sarah “suffered through painful dialysis, four painful surgeries … and was forced to live through the uncertainty of whether she would ever find a kidney suitable for transplant before dying.”
“Paul Jr.’s kidney was considered a ‘perfect match’ for Sarah. Sarah seeks damages she has suffered and will continue to suffer due to the loss of Paul Jr.’s perfect kidney. Paul Jr. seeks damages he has suffered and will continue to suffer for having to undergo a painful and risky surgery, and for having to live the rest of his life with only one kidney, all in vain,” the suit reads. (Toledo Blade)
Although the medical center admits that a nurse threw away Paul Fudacz’s kidney before it could be transplanted into his sister, it has denied—in court papers— that it was medically negligent.
James E. Arnold, the Fudacz family’s lawyer, told ABC News, “They are admitting they threw the kidney away, but they are not admitting substandard medical care.” He said, “They must think that it is within standard care to throw a kidney away.” He added, “It would be more decent to admit substandard care, and the family shouldn’t have to be going through litigation to prove it. It’s obvious to everyone but the university — in all fairness.”
UPDATE:
The hospital filed to dismiss the loss of consortium claims, but not the medical negligence, according to the Toledo Blade. A university representative told the paper he did not know how much the school had compensated the family thus far.
SOURCES
Ohio Transplant Victim Says Hospital ‘Wasted’ Brother’s Kidney (Good Morning America)
Kidney for Ohio Transplant Thrown in Trash (ABC News)
Toledo Hospital Threw Out Donor Kidney, Now Denies Negligence (ABC News)
UTMC seeks to have kidney lawsuit dismissed: Woman filed suit after kidney was accidentally discarded during surgery (The Toledo Blade)
Fudacz family still trying to comprehend how daughter’s kidney transplant was botched at UTMC (The Toledo Blade)
Family involved in botched kidney transplant sues UTMC (Toledo News Now)
Case Number: 2013-00441 Title: SARAH FUDACZ, ET AL. V. THE UNIVERSITY OF TOLEDO MEDICAL CENTER
They are wrong, Gene, and in Texas economic damages are capped at $500k regardless of the number of defendants, P&S at $250K regardless of the number of defendants, no punitives. No attorney fees for claimant. S–t outta luck (statute of limitations) is 2 years, repose is 10. Sixty days pre-suit notice accompanied with release of medical records. Expert reports due 120 days after filing — if not provided case is dismissed and defendant recovers attorney fees. THERE IS NO DISCOVERY UNTIL AFTER PLAINTIFF DELIVERS EXPERT REPORTS!!!
Med-mal rates remain the same but med-mal claims have dropped for reasons you expressed. Med-mal insurance rates continue to rise, medical care rates more so. Grievances against doctors are sky high.
Med-mal limitations have been very good for insurance companies and their attorneys, somewhat for doctors. Bad for everyone else. Oh, wait, good for some legislators for very strange and perverse reasons.
Not sure about Ohio specifically, but caps generally do not apply to additional future medical costs and lost wages, i.e. real damages. The caps are for punitive damages generally speaking. They are also a reason a lot of people malpracticed on can’t get representation anymore. Med mal is expensive to prosecute and if a lawyer takes the case on a percentage basis and they can’t make a profit from the punitive damages, they are less likely to take the case. Many times the math doesn’t work to the patient/victim or the attorney’s benefit because it can cost way more than $250,000 to prosecute a med mal case.
Don’t get me started on med mal caps. It pisses me off to no end. Not because I’m a lawyer either. Limiting damages is bad for the patients and good for the insurance companies and doctors. It’s corporate and wealth care protection that both usurps the jury’s role, prohibits damages that are truly commensurate with damage done, and limits the effectiveness of damages as deterrent. They are wrong.
Speaking of checklists, there is a name for pilots whose checklist consists of kicking the tires, lighting the fires and going, if they do it very long.
Statistics!
In my limited experience working in a Hospital and the lack of Common Sense —
if you don’t see Check Lists in the Surgery Suites, no matter how trivial or remote for possibilities, you can Blame the Head Surgeon’s Ego.
I have seen where Medical Ego trumps Good Housekeeping or pre-Flight Check Lists. (NASA does it all the time. Doesn’t hurt their Egos or Sensibilities.)
Many times, Nurses are used as the Fall Guys. Let’s not kid ourselves, the Doctors are the directors and set the Mindset of Operating Procedures. If you haven’t worked around Surgeons, you haven’t seen “god.”
This is an example of bean counter and lawyer (bad) logic that fighting will result in a win. Smart lawyering would include an apology and a check. (Except for C Sheen.)
I’ve known a couple of people who suffered greatly because of malpractice.
suing was a no go because the Hospital lawyers dragged the proceedings out for years. To add salt in the wounds they both ended up filing bankruptcy because of medical bills brought on by the malpractice.
How’s that for justice?
Oro Lee, Great point. I just looked up Ohio and they have a 250k cap on non economic damages. They have a 500k cap for egregious errors ala loss of limb. I surmise the loss of a kidney, by both parties, can be argued. However, w/ these caps I see the defense attorneys paying the limits and walking away. Mespo or other med mal attorneys would know better. I
“They better pray a settlement is accepted before this goes to jury.”
“If the defense attorney doesn’t settle this then it is legal malpractice.”
Does Ohio have limits on med-mal damages? If they are low, then why settle? How much worse could it be? What other obstacles are there to a med-mal claim in Ohio?
Not that I don’t think the hospital was probably culpably negligent, but the actual resistance-to-settlement MAY be coming from the U’s insurer. Parties are often “forced” by their insurer’s to put up pro-forma resistance. A hobby group I was once was quite active in once experienced a tragedy and had to defend against a ridiculous claim before the insurance would settle. Unfortunately the paranoia from that incident has massively altered the nature of the group.
Gene, If the defense attorney doesn’t settle this then it is legal malpractice. I’ve worked some legal malpractice cases and a few were pretty nasty.
They can argue they were not medically negligent. In fact, I’d expect them to argue just that. Makes for a zealous defense, but it’s prime facie nonsense.
They better pray a settlement is accepted before this goes to jury.
As someone who has spent literally years of my life as a patient in hospitals I caution everyone to be their own advocate and also have someone to advocate for you. As a heart transplant recipient my life literally saved my life four times by arguing with medical staff about procedures and the accuracy of their care. My heart transplant surgeon admitted such and praised her for her alertness. Hospital mistakes like the one in this post above are far more frequent that people suspect.
leej, That’s correct. However, the biggest factor in whether a doc, not a hospital, gets sued is whether the patient likes him/her.
Elaine, Absolutely. OS knows checklists are invaluable in airplane safety. I always feel good seeing the pilot walk around eyeballing the exterior. When you fly a small commuter you can hear them doing the checklist in the cockpit.
Moore didn’t know prior to her lunch break that the purpose of the surgery was to effect a transplant?
Before my knee surgery in the early 70’s, a nurse shaved my left knee. I asked, “Are y’all so concerned about germs that you shave both legs?” Nope, but her work order had the wrong knee listed. After she shaved the right (literally) leg, I had her print STOP on my left knee.
I have read studies (and talked to folk who were victims of med mal, and made worse as a result) that show if doctors and hospitals fessed up people were less willing to sue.
Lawsuits also allow them to disavow any responsibility when settlement(s) offered.
The hospital would have done much better to just fess up to the lack of even standard level of care.
(and based on the article I can’t imagine on what grounds (legitimate grounds) Lemay has any cause to sue.)
Very sad.
nick,
I remember listening to a doctor talk about using checklists as being helpful in hospitals a few years ago.
Top surgeon Atul Gawande urges doctors to use ‘The Checklist’
Liz Szabo, USA TODAY
1/26/10
http://usatoday30.usatoday.com/news/health/2010-01-27-checklist27_st_N.htm
Excerpt:
Television shows such as House promote the idea that, to be great, a doctor simply needs to be brilliant.
But surgeon Atul Gawande, who teaches at Harvard Medical School, says medicine today is so complex that even the sharpest doctors can no longer keep everything they need to know in their heads.
As a result, patients don’t always get the care they need.
Only about half of heart attack patients, for example, get the best care within the recommended time window, Gawande says. In some cases, providing consistent care can be more important than a new breakthrough. And even after a new discovery, research shows it takes an average of 17 years for that treatment to reach even half of the Americans who could benefit, he says.
“We have focused on having the great doctor or the great drug,” says Gawande, author of the new book The Checklist Manifesto (Metropolitan Books, $24.50). “But on your own, with your training and your brain, there will be things that fall through the cracks, where you find you need the help of other people.”
That help can come from a checklist, much like one routinely used by pilots before every flight.
In a study published last year in The New England Journal of Medicine, using a “safe-surgery checklist,” which Gawande helped develop for the World Health Organization, reduced the number of complications and deaths by more than one-third.
What a screw up. When you have surgery they now ask @ least 7 or so times, “Now, it’s your left knee we’re operating on, right?” My wife had knee replacement surgery a year ago. She was asked the same question about 8 times. Then, her surgeon came in, asked her again, and initialed the correct knee. Unfortunately, you can’t initial a kidney. I’ll be passing through Toledo next week. Hopefully no medical issues arise.