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No Recovery Against Hospitals for Family Woman Killed with Packing Left in Surgical Wound

Surgical errors can result in horrible consequences. This is particularly the case when something happens that should never happen in any surgery, like leaving surgical tools in a wound, or improperly packing a wound. However, even when these sorts of obvious errors happen, those who are injured (or their families in cases of death) are not always able to recover in court.

One example of this problem is a recent case from New York, Bucsko v. Gordon. While the court’s decision in the case was not released for publication, and thus has no precedential value, the facts of the case show how families can be prevented from recovering the damages they deserve as a result of the wrongful death of their loved one.

The Case Details

In the Bucsko case, Mary Bucsko underwent a right hemicolectomy, which is a procedure in which the right side of the colon is removed. Almost a full year after the procedure, a piece of “old packing” was discovered in Ms. Bucsko’s surgical wound. Ms. Bucsko had undergone her surgery at a medical center by one doctor, but then was cared for after the surgery at a different facility by that doctor and his staff.

Then she was cared for in her home by visiting nurses employed by a third company, and by the doctor’s private office. Ms. Bucsko sued the various healthcare providers, alleging that leaving the packing in her wound was negligent, and that it delayed her recovery. Unfortunately, Ms. Bucsko then died. A family member stepped in an acted as the substitute plaintiff in the suit, and amended the complaint to add a cause of action alleging Ms. Bucsko’s wrongful death.

The hospital defendants asked the court to dismiss the cases against them, and the court complied with that request. On appeal, the appellate court agreed with the trial court’s decision in dismissing the cases. The hospital defendants submitted affidavits from a doctor and a nurse alleging that their treatment of Ms. Bucsko conformed to good and accepted nursing practice, and an affidavit form an oncologist who opined that the hospitals’ actions were not the proximate cause of Ms. Bucsko’s death.
Meanwhile the family member who pursued Ms. Bucsko’s claims did not present evidence pretrial to show that the hospital was negligent.

Instead it relied on the doctrine of “res ipsa loquitur.” Res ipsa loquitur is the idea that the thing speaks for itself. So in this case, the argument was that the presence of the packing spoke for itself, and proved that the hospitals must have been negligent. The court disagreed. It determined that the doctrine did not apply because the medical centers involved did not all treat Ms. Bucsko at the same time. That meant that the packing material’s presence was not enough to prove who was responsible for its continued presence, and alone it could not prove the case. As a result, the suit against the hospitals will not be allowed to proceed, and the family will not recover any damages from those parties.

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