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
Tony, Since when does settling a case mean, or even imply, the defense attorney is not doing his job in getting a fair deal for his client. The defense attorneys bill hours. They don’t want to lose a client by settling for more than should be. It’s competitive out there. Maybe you’re not understanding settlements. Rarely would a med mal case settle prior to some discovery. If it’s pre suit, then there is some info offered to the defense along w/ the demand letter. If that isn’t adequate, then the plaintiff will file suit and formal discovery begins. The settlement may not be until just prior to trial after all discovery is complete, which is often the case. Settlement should never mean giving more than the case is worth. Since approximately 90% of tort cases settle, that would mean a lot of wasted money. Insurance companies don’t build those big buildings wasting money. Although, I did work for AIG and they did!!
Not in the slightest, Tony. There are plenty of valid reasons for not settling at this point, but if you want to read more into what I said than I said and materially misrepresent it, make all the straw men you like.
What you said about caps is still bullshit.
Elaine M.
1, September 1, 2013 at 9:20 am
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LONG overdue….and these types of ratios insure not just adequate care and safety for the patient but also for the staff and the institutions. It is insane that there is not an across the Country minimum staffing level and standard of care. Now that the walls have fallen and the entities that exist to make $$$ are driving the bus proverbial I hope our politicians grow some nadsicles and enact and enforce better standards as part of the oversight of Obamacare….it is long overdue….
Gene: But thanks for reminding me that med mal caps also …
I deserve no credit, because I have no idea how I reminded you of that, since I did not mention them and in another post (before yours) expressly rejected them, and I do not believe in them myself. Any reminding was unintentional on my part.
I said, in response to Nick, that I did not think a defense attorney refusing to settle would be malpractice in any way. In attacking me, that is what you would be implicitly supporting, potential legal malpractice on the part of the Hospital’s attorney. I think the Hospital is liable, careless and negligent and has permanently damaged two lives, but that does not mean the defense attorney should not do his job and negotiate a fair outcome for actual damages inflicted by his client, and if that means refusing to settle and going to court, that is what he should do.
When I had my medical malpractice suit against Peter Jannetta for paralyzing my face, which was settled (against my expressed will and agreement) there was the CAT fund into which doctors paid. At that time it covered 100,000$ and the doc had med mal insurance. I don’t know if there are CAT funds for hospitals but those 2 combined often let the doctors get off with paying nothing or almost nothing out of pocket.
I seriously doubt a med mal case could or would bankrupt a hospital.
That being said Pittsburg Presby had to know this doctor allowed “ghost surgery” (someone else operating while he was not in OR and on his case not in hospital (he talked about this in his biography Working In A Very Small Place. ) They got off scot-free because of bad attorneying and a court that was complicit.
The problem is caps let hospitals and doctors off without paying what the real cost of the malpractice is. I agree these 100 million$ requests are not appropriate but rarely does a plaintiff come out with a gigantic settlement or verdict. (And it seems often, if they do, the court, reduces it.
(By the way September is National Pain Awareness Month.
In Pennsylvania it is Women In Chronic Pain Awareness Month
unrelated to med. mal but ‘medical’ so hope you don’t mind my mentioning it.
And, please pass it on. (:
Tony,
Judges can and do modify damages returned by juries at common law except where prohibited by statute like med mal.
If the award indicates prejudice, excessive passion or corruption on part of the jury, if it appears the jury ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amount of damages recoverable and if the jury took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture, the judge may modify. The judge must consider if the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered and whether the amount awarded is supported by the evidence and is such that it could by adduced in a logical manner by a reasonable person standard.
But thanks for reminding me that med mal caps also remove judicial discretion as well as the wrongs of it previously mentioned.
Elaine: I disagree with that law, I do not think such defined amounts are fair. A person’s life is worth more than $250K to me, and some “pain and suffering” (like becoming a paraplegic at age 20) is severe enough to effectively ruin a life for many decades. I do believe in compensation and in punitive damages as a form of punishment, and I think those always need to be decided on a case by case basis by a jury, with the right to appeal to a second jury, perhaps under certain guidelines for extreme judgments.
Gene: It is not bullshit.
If there is no limit on losses, then any mistake can result in bankruptcy by the definition of “no limit.” Insurance covers a limited and defined amount of damages. If a jury awards damages in excess of that amount, as “no limit” implies, then the Hospital is still liable for the difference.
I specifically did NOT say the limit should be defined, which is what would be required for the Hospital to incorporate the loss into the cost of doing business, what I did say specifically is that a jury should determine the fair amount of compensation for the loss and the defense should NOT simply settle for whatever the victims demand; that is foolish. There is a fair settlement that makes the victims whole and amounts wildly in excess of that are the victims engaging in exploitation, e.g. a pinky toe lost due to malpractice is not worth a billion dollars.
bettykath
1, August 31, 2013 at 2:05 pm
Moore didn’t know prior to her lunch break that the purpose of the surgery was to effect a transplant?
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Excellent question. Unless LeMay told her, “The kidney is here” identifying a place other than the slush machine, Moore is the breakdown point having acted on unsupported assumptions. Much depends on the records and witnesses of course, but LeMay’s case may have merits.
(merits = Did I word that correctly? In hanging around a legal blog for a few years one picks up phrases which one may not fully understand and/or use properly.)
Tony, I have to agree w/ Gene on this. And, I was almost always the investigator working for the defense, although I did work some plaintiff cases. I have never heard of a hospital going out of biz from a lawsuit. It may have happened, I just never heard of it. As you know, small hospitals are being eaten up by large corporations. But , that’s a different dynamic. And, while I do agree w/ you that there are exploitive cases[see John Edwards], the remedy of caps is not the answer IMO. This comes a defense guy. Years back I was a cap guy. But, I’ve seen in my state a two tiered system. All hospitals and docs working the private sector had no cap protection[that’s changed back and forth!]. But, the University of Wi. has cap protection by virtue of their government status. There has to be a remedy for cases that exceed the cap legitimately. I don’t have that remedy. It’s complicated. But, there needs to be one.
Quite simply, Tony: Bullshit.
Either they are adequately insured or they aren’t. If they are, that is what insurance is for: risk pooling. If they aren’t? They deserve to go out of business because of incompetence. If they are incompetent, the medical corporations can go after the individuals.
Punitive means inflicting or intended as punishment.
If you can budget for it?
It’s not a punishment.
It’s a fixed cost of doing business usually passed on to the customers.
You see that exact thing going on with Big Banks all the time.
Tony,
Read this comment that I posted this morning:
http://jonathanturley.org/2013/08/31/relatives-perfect-match-donor-kidney-accidentally-thrown-out-in-trash-at-utmc/#comment-644591
Nick: Unfortunately, you can’t initial a kidney.
You can initial on the skin above the kidney, and write “THIS KIDNEY.”
Nick: If the defense attorney doesn’t settle this then it is legal malpractice.
No it isn’t. If they demand $100M and won’t budge, I think the hospital should go to a jury. I have worked for a hospital, and medical malpractice is real but some people see the damages as an opportunity for insane levels of exploitation dozens of times what they might ever earn in a lifetime.
I do not believe there is a formula for it, but there is some rational limit to losses that depends on the context of the individual situations, and I think juries are necessary to decide at what point the plaintiffs cross over from being victims of an accident to harming society by bankrupting a Hospital that on balance is doing more good than harm. Damages are a necessary component here to make the victims whole, but at some finite level of damages that is accomplished and greater damages harm future patients by impairing or bankrupting a medical resource that serves the community, or by a chilling effect make transplants too risky for this Hospital (and others) to perform.
I just found this:
Law limits kidney suit damages
UTMC’s liability in case smaller than a private hospital’s
BY JIM PROVANCE
http://www.toledoblade.com/local/2013/08/02/Law-limits-kidney-suit-damages.html
Excerpt:
COLUMBUS — If Sarah A. Fudacz and her kidney donor brother, Paul Jr., had been in the operating room of a private hospital when a nurse inadvertently threw away the transplant organ, they and their family could have potentially sued the hospital for as much as $1 million for pain and suffering.
But because the incident occurred in the operating room of the University of Toledo Medical Center, considered to be an arm of state government, the most the siblings could collect is $250,000 each. Punitive damages against the school are also not an option, unlike a case involving a private institution.
“It’s totally unfair to both the injured patient and to the taxpayers, because the cap will limit the recovery for the person severely injured and because taxpayers will have to pay for both the legal defense and the costs of the award,” said John Van Doorn, executive director of the Ohio Academy of Justice representing plaintiff attorneys.
A 1987 law, which predates the state’s broader medical malpractice law by nearly two decades, caps noneconomic damages for harder-to-quantify things like pain, suffering, and emotional distress at $250,000 per person.
Since the state of Ohio is essentially the unnamed defendant in the case, the lawsuit will be heard by an Ohio Court of Claims judge in Columbus instead of a local court jury.
Sarah Fudacz speaks out after nurse threw out kidney her brother had donated for surgery
http://www.news.com.au/world-news/sarah-fudacz-speaks-out-after-nurse-threw-out-kidney-her-brother-had-donated-for-surgery/story-fndir2ev-1226708372163
Excerpt:
Hospital staff had recovered the kidney from the rubbish, and Fudacz said she saw it sitting in an incubator-like box, contaminated with biowaste and no longer usable.
“I saw the kidney and had a moment with it. … I was thinking, ‘This should have been transplanted into me,” Fudacz told The Blade of Toledo on Friday during an interview in her lawyer’s office in Columbus.
The hospital later helped Fudacz find a new kidney and pay for travel expenses to Colorado for the surgery, which was successful.
Still, the Toledo family is suing the facility over the mistake, saying it deeply affected their lives and continues to cause them pain. And they say the kidney Fudacz received in Colorado isn’t a perfect match, meaning it will not last as long as her brother’s would have.
Elaine,
I emailed a link to your story to my son and DiL. He is a hospital medical director, and she is a critical care (ICU) RN. Both of them were horrified. I hate to think what he would do if this happened at his hospital. He would definitely open a can of this product:
http://i151.photobucket.com/albums/s135/aeonnz/Random/whoopAss.jpg
Woosty,
The nurses is Massachusetts are hoping to get better nurse/patient ratios mandated in my state:
Union backs Mass. vote on nurse staffing levels
By STEVE LeBLANC / Associated Press
August 5, 2013
http://www.boston.com/news/local/massachusetts/2013/08/05/union-question-would-set-nurse-staffing-levels/xGx4epXFcGFmJgngOw2ZwJ/story.html
Excerpt:
BOSTON (AP) — A union representing Massachusetts nurses is pushing a ballot initiative designed to set limits on the number of patients that can be assigned to a nurse at any one time.
The question would also require hospitals to adjust nurses’ patients assignments based on the severity of the medical needs of those in their care, the Massachusetts Nurses Association says.
Union officials say patient limits can reduce the number of mistakes, serious complications and preventable readmissions.
Massachusetts has no law that established the maximum number of patients a nurse can safely care for at any one time, said Donna Kelly-Williams, president of the Massachusetts Nurses Association/National Nurses United. She also said there’s no requirement for hospitals to adjust their staffing levels based on patients’ medical needs.
‘‘As a result, hospitals are forcing nurses to ration care, placing patients’ health in jeopardy,’’ Kelly-Williams said.
” 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.”
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What was the level of staffing and what percentage of staff was permanent vs ‘Agency’ or fill in staff?
Aside from this case is the glaringly gross ‘Malpractice’ of rewarding the Administrations that set the working conditions with a paid vacation while the exhausted staff that tries frantically and in vain to prevent this nasty outcome… those play patient advocate, care deliverer and who must also audit pre and post check on all the other departments who lay hand and intelligence (hopefully) on the patient before the surgery, are fired, flamed and dismissed and set of into wilderness like lepers while the cowardly and hidden $$$ makers lay every ounce and smidgeon of blame on their backs before they go.
A$$-wholes.
In addition to chronic(unenecessarily so) short staffing in (now profit focused and driven) hospitals and other healthcare entities is that big lie, that those who set the conditions and farm the profits have any idea of the what health CARE entails and that the business model can be anything but a disaster for the health of the American people.
Single payer. Now. Inject a little ‘Socialism into our Democratic Republic and we just may be able to turn away a Fascist (and repeat an ugly history….)regime….
my humble opinion……
Settling a case is not a unilateral action by the defendant. Settlements don’t happen until both sides agree on amounts, and sometimes other matters. A plaintiff’s unreasonable demand can be as significant a bar to settlement as a defendant’s unreasonable refusal to pay for a mistake. The case was just filed, so it is quite likely that the parties have not assembled the information they need to determine the reasonable range of settlement. It is going to be a complex matter, as among other things they will be trying to determine what her future expenses/health will be and how it would likely have been different if an earlier transplant with her brother’s kidney had occurred. Many of those questions require expert analysis after a significant amount of information has been gathered–even then people acting in perfectly good faith can have wildly different views of what the difference would be.