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$10.5 Million Louisville Verdict

Boerste Trial

In 2017 Carolyn Boerste required amputation of her left leg below the knee due to complications from removal of an 18 x 18 inch surgical sponge that had been left behind in her abdomen during an aorta surgery 6 years earlier. Five separate medical providers were implicated in this tragedy of errors for a low socioeconomic plaintiff with diabetes and peripheral vascular disease.

Carolyn Boerste, then age 54, underwent an aortobifemoral bypass on March 10, 2011 at University Hospital performed by Dr. Marvin Morris, vascular surgeon. During the surgery Dr. Morris inadvertently transected Carolyn’s left renal vein which went behind, instead of in front of, her aorta. A “bloody mess” and “crisis” ensued around lunch time which required Dr. Morris to call in another vascular surgeon to help staunch the bleeding. The circulating RN testified they did not do the lunch sponge count that was required per the hospital surgical count policy. The proof developed that the nurses viewed the policy as a mere “guideline” and they felt free to use their nursing judgment as to when to do sponge counts regardless of what the policy required.

The 2011 aorta surgery was a success in terms of improving Carolyn’s blood flow to her legs which had gotten so bad due to her peripheral vascular disease that the day after the bypass on March 11, 2011 she had her right toes amputated due to gangrene. Unfortunately, unbeknownst to all concerned a sponge had been left behind a day earlier.

Four years later the sponge had eroded via transmural migration from her abdomen into her intestine causing gastrointestinal issues. Carolyn took an ambulance to the Baptist East ER where ED physician Dr. Mark Nunley saw her on March 24, 2015 and ordered an abdominal CT scan which revealed the x-ray detectable sponge marker inside of Carolyn’s intestine. The radiologist who read the CT phoned Dr. Nunley at the end of his shift and advised him about the sponge marker. Carolyn was still in her ER room when Dr. Nunley got the call from the radiologist. Dr. Nunley did not share with Carolyn the information about the sponge marker. He had discharged Carolyn a few hours earlier telling her she had a UTI. Dr. Nunley had no memory of the call with the radiologist about the sponge marker.

The Baptist East CT report was then faxed to Carolyn’s family physician, Dr. Kim Brumleve, at Family Health Centers which serves lower socioeconomic patients and is subsidized by the federal government. Dr. Brumleve initialed that she had read the report but did not mention the sponge marker to Carolyn when she saw her on April 21, 2015. Dr. Brumleve claimed she thought the sponge had been handled by Dr. Nunley. Therefore, the sponge stayed inside of Carolyn for another 20 months, snaking through her intestine all the while. Family Health Centers was a defendant in a Federal Torts Claim Act case and served as one of two empty chairs at trial.

On November 23, 2016 Carolyn returned to the Baptist East ED a 2nd time in an ambulance with even more intense gastrointestinal issues due to the sponge causing an obstruction in her intestine at this point in time. One of Dr. Nunley’s partners saw Carolyn and ordered another CT which again revealed the sponge. This time the information was shared with Carolyn and the sponge was removed via exploratory laparotomy on November 30, 2016.

Carolyn got pressure ulcers on her heels while she was laid up recovering from the sponge removal surgery. Her recovery was delayed by her abdominal wound from removing the sponge becoming infected and having to close by secondary intention. An ulcer on her right heel was first noted on December 4, 2016. She required a revascularization procedure on her right leg and debridement and Integra grafting on her right foot, all of which further limited her mobility.

While Carolyn was at Franciscan Rehabilitation recovering from her right heel pressure ulcer she developed a blister on top of her left heel which had a pressure ulcer brewing underneath. The blister was caused by Franciscan being short staffed and not having two aides to help pull Carolyn up in her bed with a lift sheet. Two folks are required with lift sheets per the standard of care. With only one aide to help with the lift sheet Carolyn was required to push with her left heel. The left heel blister was first noted on March 29, 2017. Franciscan settled pretrial and was the 2nd empty chair at trial.

Despite a revascularization procedure on her left leg and debridement and Integra grafting of her left heel her leg could not be saved. Carolyn’s left leg was amputated below the knee on July 12, 2017.

The University Hospital conceded fault for the sponge 5 days before trial. For the previous 3 years the defense had been the sponge was left behind in a 1988 gallbladder procedure. The concession of fault became problematic for defense counsel when Dr. Morris was on the stand and admitted the nurses had breached the standard of care by not keeping track of the sponges and had caused injury to Carolyn. Midtrial defense counsel was required to get waivers of conflict of interest signed by her clients, the 3 defendant nurses and Dr. Morris.

Dr. Nunley defended that since he did not remember the conversation with the radiologist anything could have happened. He also offered a causation defense that his involvement was so brief that he did not cause any injury to Carolyn. Dr. Nunley’s position was Dr. Brumleve was the true offender when it came to the 20 month delay in removing the sponge from 2015 to 2016.

The Defendants also defended on causation with shared experts, Dr. Aimee Garcia (wound care) and Dr. Christopher Abularrage (vascular surgery). They opined that Carolyn was doomed to lose her leg due to her worsening diabetes, worsening peripheral vascular disease, obesity, former smoking history, noncompliance, and overall poor lifestyle choices. Dr. Nunley had his own expert, Dr. Jonathan Mandelbaum (general surgery), who did not opine as to the leg loss but offered that Dr. Nunley met the standard of care by not telling Carolyn about the sponge while Dr. Brumleve breached the standard of care by not telling her.

All three defense experts admitted the nurses breached the standard of care and caused injury to Carolyn. However, they limited her damages to $90,000 of medical bills through January 30, 2017 by when her infected abdominal scar had healed. Eight days later on February 8, 2017 Carolyn was admitted to Audubon Hospital with a smelly and gangrenous right heel that further limited her mobility.

The University nurses and Dr. Morris did not call one expert to defend their care or the hospital count policy and perioperative record which were not standardized whereby the nurses could record the counts required by the policy on the electronic medical record. The nurses’ reckless conduct aside in ignoring the mandates of the poorly crafted policy, they were set up to fail by the hospital who provided a policy that suggested 6 or more sponge counts and an electronic medical record with only 3 spaces to record the counts.

Bo put together perhaps his most impressive stable of experts for Carolyn’s case. Her experts were Dr. Verna Gibbs (general surgery), RN Cathy Kleiner (nursing researcher), Dr. Carrie Tibbles (ED), Dr. Martin Borhani (vascular surgery), and RN Laura Lampton (life care planner). Dr. Gibbs is the preeminent expert when it comes to avoiding retention of foreign bodies during surgery with her safety project No Thing Left Behind® being cited by the Joint Commission in its Sentinel Event Alert regarding preventing retained foreign objects. RN Kleiner is a nursing researcher at Children’s Hospital Colorado and in a former life supervised the folks at the American Association of Perioperative Nurses (AORN) who generated the AORN recommendations for surgical count policies. Dr. Tibbles is an ER physician from Harvard working primarily at Beth Israel Hospital. Dr. Borhani is the Chief of Vascular Surgery at the University of Illinois at Chicago.

Bo tried the case with Nick Mudd. The jury, which included a UofL employee who found for Carolyn and the forewoman who did not, was tried for two weeks and awarded past medicals of $550,000, future medicals of $875,000, and mental and physical pain and suffering of $8,075,000 for a total compensatory damages award of $9,500,000. There was no claim made for wages as Carolyn had been disabled as of the time of the 2011 surgery when the sponge was left behind. In addition, the jury awarded $1,000,000 in punitive damages against the University nurses.

The jury apportioned 60% fault against the University nurses, 10% fault against Dr. Morris, 0% fault against Dr. Nunley, and 15% fault against the empty chairs, Dr. Brumleve and Franciscan. The total collectible verdict amounts to $950,000 against Dr. Morris and $6,700,000 against the University nurses after factoring in the punitive damages award.

University Hospital made a pre-trial offer of judgment of $500,000 to resolve the case and Dr. Nunley made a pretrial offer of judgment of $225,000.

Note: It is believed that this is the 1st Kentucky case since 1997 where a surgeon in a retained sponge case has had fault assessed against the surgeon, with that prior case having been tried by Mr. Bolus in 1997 on behalf of Pattie Brown Brown v Dr. Ross, et. al

For more on this case, and others, please visit our Verdicts & Settlements page.