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Burns from Shoulder Limb Positioner Not Cooled After Sterilization


A woman was admitted to a hospital to undergo arthroscopic shoulder surgery on her left shoulder. A Spider Limb Positioner manufactured by Smith & Nephew, Inc., was to be used to hold the woman’s left arm in place during the surgery. To use the positioner a metal bar would be strapped onto the patient's arm, and that bar would be strapped to a coupler that immobilized the shoulder.

 

Prior to the woman’s surgery, the circulating nurse noticed that the positioner’s metal bar had not been sterilized. The circulating nurse placed the metal bar in a sterile basket and then placed the basket in an autoclave, which is a device that heats objects to the sterilization temperature of 270 degrees Fahrenheit.

 

The operating room technician (ORT) prepared the equipment to be used in the woman’s surgery. The circulating nurse brought the metal bar into the operating room still in the sterile basket. The ORT removed the metal bar from the sterile basket to a sterile table with a glove or towel because the metal bar was still hot from the autoclave. The ORT did not cool the metal bar in a sterile saline bath.

 

The physician’s assistant (PA) who worked with the orthopedic surgeon’s practice group placed the metal bar into a foam sleeve. She attached the bar to the patient’s arm. Then she strapped the bar to the coupler that immobilized the shoulder. The orthopedic surgeon performed the surgery. The Spider Limb Positioner held the woman’s arm throughout the procedure. When she awoke from anesthesia, the woman complained of pain in her pinky finger. A nurse noted blistering on her finger.

 

About six weeks after the surgery, the woman received the medical records of the procedure. The medical records provided the names of the individuals involved in the surgery but did not detail the specific activities of the surgical team during the procedure.

 

Just under two years after the surgery, the woman filed a medical malpractice action against the hospital, orthopedic surgeon, and fictitiously named defendants. She alleged that she had suffered a severe burn on the little finger of her left hand as a result of the defendants' actions and that the burn had caused permanent disfigurement and impaired mobility in her hand.

 

The woman conducted discovery including deposing the ORT and PA. Over a year after the woman filed the complaint, she filed a motion to amend her complaint to substitute the names of the ORT and PA for the fictitiously named defendants. The orthopedic surgeon and hospital filed motions for summary judgment. The Jefferson Circuit Court granted summary judgment to orthopedic surgeon and hospital and denied the woman's motion to amend her complaint to substitute the true names of the ORT and PA for two fictitiously named defendants.

 

On appeal the woman raised three issues. First, she contended that the trial court erred by granting the orthopedic surgeon’s and hospital’s motions for summary judgment. She argued that she was not required to present expert testimony to demonstrate that those defendants had breached the standard of care. Second, she argued that the trial court erred in dismissing her claims of assault and battery. Third, she contended that the trial court erred by refusing to allow her to amend her complaint to substitute the ORT and PA for the fictitiously named defendants in her original complaint. She argued that her naming of them as defendants related back to the filing of her original complaint, thus avoiding Alabama’s two-year statute of limitations.

 

The Supreme Court of Alabama affirmed in part, reversed in part, and remanded. Specifically, the court reversed the lower court’s grant of summary judgment to the hospital. The court reasoned that expert testimony was not necessary to establish that there was a breach in the standard of care. Failing to ensure the metal bar was sufficiently cool before it was attached to the woman’s arm could easily be understood and determined by the average person without the aid of a medical expert. A genuine issue of material fact existed as to whether there was a breach of standard of care owed to the woman by a hospital employee, precluding summary judgment for the hospital on her medical malpractice claim.

 

The court affirmed the lower court’s grant of summary judgment to the orthopedic surgeon. The court found that there was no evidence of negligence on part of the orthopedic surgeon and there was no evidence that the orthopedic surgeon was the master of the PA, as necessary for vicarious liability for the PA's actions.

 

The court affirmed the lower court’s dismissal of the woman’s claims of assault and battery. The court found that there was no evidence that the woman failed to give informed consent, as necessary for recovery on assault and battery claims.

 

The court affirmed the lower court’s refusal to allow her to amend her complaint to substitute the ORT and PA for the fictitiously named defendants in her original complaint. The court reasoned that the woman did not exercise due diligence before or after filing her original complaint to determine the true identity of the fictitiously named defendants, as necessary to invoke the relation-back doctrine. To invoke the relation-back principle in regard to fictitious-party practice, a plaintiff (1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued. A plaintiff is ignorant of the identity of a fictitiously named defendant, as necessary for an amended pleading substituting defendant's true name to relate back for limitations purposes to original complaint, when, after exercising due diligence to ascertain the identity of the party intended to be sued, plaintiff lacks knowledge at the time of the filing of the complaint of facts indicating to him that the substituted party was the party intended to be sued.

The court noted that less than two months after surgery the woman obtained medical records that included the names of the individuals who had served as the ORT and PA during surgery. The original complaint filed almost two years after surgery did not name those individuals. The woman did not ascertain their roles in surgery until over a year after filing complaint.

 

See: McGathey v. Brookwood Health Services, Inc., 2013 WL 3958299 (Ala., August 2, 2013) (not designated for publication).

 

 

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