Plaintiff, 39 years of age at the time, underwent a C-section for the delivery of her twins. Both babies were born healthy; however, in the four months after the surgery, Plaintiff experienced significant pain. Despite a referral for physical therapy and several visits back to Defendant OB-GYN who performed the C-section, the underlying cause of Plaintiff’s pain was not identified.
Frustrated with Defendant OB-GYN’s inability to address her pain, Plaintiff went to her general practitioner. The general practitioner immediately ordered an x-ray, which revealed a surgical pad and ring had been left behind from the C-section. After having the surgical tools removed, Plaintiff sued Defendant OB-GYN, alleging he was negligent in his supervision of the hospital staff, that he negligently failed to keep a count of his tools and he was negligent when he failed to order an x-ray in the four months after the surgery. The hospital was also named as a defendant.
Defendant OB-GYN argued that he had a right to rely on the nurse’s count, and he could not be held liable. Plaintiff disagreed, claiming that Defendant OB-GYN had a duty to supervise the hospital staff, and had he done so, the surgical pad and ring would not have been left behind. Further, the delay in diagnosing the underlying cause of her pain resulted in an indolent infection, adhesions and the build-up of significant scar tissue around the objects left behind. Plaintiff continues to suffer permanent pain around the site where the foreign objects were removed, which flares up around ovulation.
At trial, a jury awarded Plaintiff $1.5 million for past and future pain and suffering. However, that amount was reduced by 40% because liability for Defendant OB-GYN was apportioned at 60% and liability for the hospital, which settled prior to trial for an undisclosed sum, was found to be 40%.
COURT: Supreme Court of NY, Bronx County