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Breaux v. Thurston12/30/2003
p. ... If you could cover that with a heavy quilt and put an eight to ten inch incision on it and fill it with, say some wet noodles all inside, and you've got that little eight inch or ten inch incision to reach through and palpate, it's a much more difficult job to palpate accurately throughout the abdomen, all four quadrants, on someone of that size and depth than it would be, say, a slender person who did not have that size of an abdomen. So, to specify the emphasis, I'd say it would be more the nurses' count, the correctness of that count, than what I can feel."
Dr. Waites testified that, based on Dr. Breaux's description of what he had done in visually and manually exploring for any retained objects and then relying on the nurses' count, Dr. Breaux had met the standard of care.
Both Dr. Breaux and Dr. Waites testified that if a surgeon were to explore more extensively and more aggressively for retained objects than had Dr. Breaux, there would be a substantial risk of disruption of the surgical connections, damage to the internal organs, and infection. Dr. Breaux testified that such occurrences would be "catastrophic." He also testified that an extensive exploration could create hemorrhage by disrupting blood vessels, which would be "disastrous." Additionally, there would be the risk of stimulation of "adhesions" from irritation.
Dr. Waites testified that the retention of the Babcock clamp should not have happened, because it should have been picked up on the instrument count, and that although instruments "are left in frequently," in 99 percent of the cases, based on a reported "incorrect" count, they are picked up on a re-exploration or by X-ray. As noted, those are among the procedures prescribed by the Cooper Green policy when a discrepancy between a preoperative count and a postoperative count is not otherwise resolved. Dr. Waites testified that, pursuant to the standard of care, a doctor completes his undertaking to the patient if he has properly looked for retained objects, has properly felt for them, and has gotten a "correct" instrument count. "In other words, he has not completed his procedure to the point that he can sew her up if he has not gotten a correct instrument count." When asked, obviously in anticipation of the jury charge to the effect that a nurse's responsibility of counting "amounts only to an added precaution," whether in fact " he nurses' responsibility of counting instruments after surgery amounts only to an added precaution," Dr. Waites testified that such a statement "underestimates the importance of what the nurses do, particularly in obese patients." He stated that in bariatric surgical patients, the nurses count is probably "number one" in importance, because of the patient's girth and size. Accordingly, he said, under the standard of care, the nurses' count is "much more than an added precaution." Dr. Waites further testified that once a surgeon had properly "looked, felt, and asked for a correct count," and has been advised that the count is correct, the surgeon "absolutely" has "completed his responsibility to the patient there on the operating table."
The trial judge charged the jury, in pertinent part, as follows:
"Plaintiff further claims that the defendant breached the standard of care required of him, and further claims that she was probably injured as a proximate result of the alleged breach of the standard of care.
"Now, there are some terms that I'm going to define for you. But first, I'll tell you this, that the defendant denies the claims of the plaintiff. Therefore, the burden is upon the plaintiff to reasonably satisfy you, by substantial evidence, of the truthfulness of all the elements of
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