One for the Good Guys

Here is a reprint of an Indiana State Medical Association (ISMA) memo showing physicians have won a significant decision in the Indiana Courts.

The Dec. 31, 2007, ISMA Reports discussed an amicus curiae (friend of the court) brief in Ho vs. Frye, a retained sponge case. The Indiana Supreme Court on Feb. 21 ruled in favor of Dr. Ho – and all Indiana physicians.

"The ISMA was the only health-related entity or association in Indiana to file an amicus brief in this case," said Jon Marhenke, M.D., ISMA president. "Once again, we have clear evidence of our members' dues dollars at work, and we thank the AMA for supporting our efforts."

Facts of the case
As a board certified ob/gyn, Dr. Ho performed abdominal surgery on his patient, Ms. Frye, at Putnam County Hospital in 2000. The hospital-employed nurse indicated to Dr. Ho, who was not a hospital employee, that the pre- and post-operation sponge counts matched. In fact, they did not.

The patient sued the hospital and Dr. Ho for injuries associated with the retained sponge. The medical review panel unanimously found both Dr. Ho and the hospital failed to meet the applicable standard of care. The hospital settled the case.

At trial, the jury found in favor of Dr. Ho, but the court overturned the decision and ordered a new trial. On appeal, Dr. Ho argued that issues of material fact existed regarding whether he was negligent and that he was not strictly liable. Further, he should be entitled to present his expert testimony to the jury. The plaintiff argued that, as a matter of law, Dr. Ho was negligent in failing to remove the sponge.

Appeals court ruling
The Indiana Court of Appeals adopted plaintiff's arguments. It refused to consider any evidence the surgical nurse was an employee of the hospital charged with the duty to count sponges. Relying on Indiana Supreme Court case law from 1932, it stated surgeons cannot "delegate the absolute authority and responsibility to a nurse or nurses to account for sponges and to thus escape responsibility himself."

This theory, premised on the idea that a surgeon is ultimately responsible as a matter of law for essentially everything that occurs during a surgery, was later identified as the captain-of-the-ship doctrine.

Indiana Supreme Court decision
On appeal to the Indiana Supreme Court, the ISMA and AMA filed a joint amicus brief explaining that the captain-of-the-ship doctrine is outdated. Indiana has since abolished the charitable immunity doctrine on which it was founded, and medicine has set clearly delineated roles and responsibilities for surgeons and hospitals (and their employees).

Therefore, persuaded the ISMA and AMA, the court should follow the majority of other states in recognizing the antiquated doctrine should not be used to impose liability on physicians for actions of hospital employees as a matter of law.

The Indiana Supreme Court accepted the case and unanimously agreed with Dr. Ho and the ISMA. The court acknowledged the 1932 language cited by the Court of Appeals, but pointed to a different part of the opinion stating: "It is for the jury to determine from the evidence whether the omission of certain treatment, like the failure to remove a lap-sponge used in the operation before the incision was closed, was or was not negligence."

The court then clarified the historical case did not hold that a surgeon is absolutely liable as a matter of law for failure to remove unnecessary sponges used in a patient during surgery. Rather, "notwithstanding a surgeon's assignment to assistants the task of tracking surgical sponges, the surgeon's failure to remove a sponge is evidence of medical negligence and will support a jury verdict finding liability on the part of the surgeon."

In short, the physician's negligence is an issue of fact for the jury. Further, the physician is entitled to present expert witness testimony. Therefore, the Supreme Court reinstated the jury verdict in favor of Dr. Ho.

"We are pleased that the Supreme Court continues to find the careful balance between health care provider liability and patient recovery," said Julie Reed, ISMA legal counsel.

"The case reaffirms physicians' legal rights to defend their own professional actions and provides assurances that they will not be held strictly liable for the negligent actions of other health care providers who are not their employees. Additionally, it does not infringe on wrongfully injured patients' rights to properly recover damages from the negligent party."