Hospital can’t be held liable after outside radiologist misses left-behind sponges, court rules
A Louisville hospital cannot be held liable after a contracted radiologist allegedly overlooked sponges left behind during open-heart surgery, a Kentucky appeals court ruled Friday.
The unanimous decision affirmed a previous jury ruling in favor of Jewish Hospital and cardiothoracic surgeon Allen Cheng, MD. Patient Phillip Cundiff filed suit against the two after they allegedly mishandled his operation in 2015, leading to significant and permanent injuries, Law360 reported April 16.
The patient claimed that Cheng botched the surgery’s aftermath, and that the hospital should be held responsible for the actions of contracted radiologist Erik Dowden, MD, who missed two sponges on post-surgery images. Attorneys for the patient did not name Dowden in the complaint, as the statute of limitations had expired against him, the news website noted.
Back in 2019, however, a jury ruled in favor of the hospital, and the three-judge panel stuck with that decision last week. In its April 16 opinion, the appeals court charged that Dowden was employed by a contracted radiology group, and the hospital did not have control over his actions.
The incident in question occurred in the summer of 2015 when Cundiff, 70 at the time, underwent quadruple bypass surgery. The surgeon purposefully left the patient packed with sponges—with the chest partially open to allow swelling to subside—after the procedure. A few days later, Cheng performed a second surgical procedure to remove any foreign objects left behind, according to court documents. To ensure that all sponges were accounted for, he consulted with radiologist Dowden, who did not find any remnants on the X-rays, with the team subsequently closing his chest.
Cundiff’s condition deteriorated in the week that followed, and a CT scan interpreted by a different radiologist days after the procedure found two surgical sponges on the left side of his heart. He later died of unrelated causes after the 2019 trial, and his wife continued on with the case.
Read more about the appeals court’s decision below (subscription required).
Marty Stempniak has covered healthcare since 2012, with his byline appearing in the American Hospital Association's member magazine, Modern Healthcare and McKnight's. Prior to that, he wrote about village government and local business for his hometown newspaper in Oak Park, Illinois. He won a Peter Lisagor and Gold EXCEL awards in 2017 for his coverage of the opioid epidemic.