The Texas Supreme Court has declined to review a case from the Dallas Court of Appeals in which a Collin County jury found a physician who left a sponge in plaintiff’s abdominal cavity after surgery was not negligent.
In Emily Abney-Acosta v. Robert Santaella, M.D. (No. 05-22-00813-CV; October 23, 2023; petition denied January 12, 2024), plaintiff sued a surgeon who performed a procedure to remove an abdominal mass. After completion of the procedure, the surgical technician responsible for keeping count of the sponges reported to the surgeon that they were all accounted for. Relying on that information, the surgeon closed the incision. About ten days later, plaintiff experienced pain and swelling at the incision site and at one point visited the hospital ER, where she received a CT scan. The diagnostic radiologist who reviewed the scan identified a “serpiginous metallic density” in the area where the surgery was performed, but the emergency physician and hospitalist reported to defendant surgeon that plaintiff’s scan showed a seroma, a fairly common post-surgical condition. Nobody told the surgeon about the metallic density, however.
A few days later, the surgeon aspirated the seroma in his office, which relieved plaintiff’s symptoms, and when the seroma reappeared again five days later, plaintiff had it aspirated in the medical office in which she worked. Though plaintiff had some additional healing problems, the incision eventually healed in the following weeks and her abdomen checked out as normal. A few months later, plaintiff experienced abdominal pain. Defendant ordered a CT scan, but plaintiff went to another surgeon instead. That surgeon ordered the scan, which once again revealed the metallic density. The surgeon subsequently removed the sponge, and plaintiff recovered. Plaintiff sued defendant for negligence. The case went to trial, and the jury returned a verdict finding that the physician was not negligent. Plaintiff appealed, asserting legal and factual insufficiency.
The court of appeals affirmed. The jury heard conflicting evidence from plaintiff and defense experts, which the court discussed in some detail. Plaintiff’s expert, a general surgeon, testified that defendant deviated from the standard of care in relying on the surgical technician’s sponge count and failing to discover the missing sponge. He testified further that defendant’s failure to look at the CT scan from plaintiff’s ER visit was a “gross deviation from the standard of care,” even though both the ER physician and hospitalist told him only about the seroma, which defendant subsequently treated. Defendant’s expert, also a surgeon, countered that defendant was not negligent because it wasn’t his job to count sponges but to perform the procedure. The surgical technician, also a defendant in the case and to whom the jury did find negligent, agreed, stating that “[he] should have done a better job.” Defendant’s expert also testified that there was no reason for defendant to request the ER scan when the physicians at the hospital reporting a seroma, which was entirely consistent with plaintiff’s symptoms. The court concluded that it was the jury’s job to credit or discredit the testimony of these witnesses, not the court’s. It thus affirmed judgment on the verdict in favor of the defendant.
We often report cases in which intermediate appellate courts uphold jury verdicts in favor of plaintiffs, forgetting sometimes that it works in both directions. Appellate courts should be deferential to juries, who, after all, are just as capable of sifting through conflicting evidence as anybody else. We should also remember that the factfinder is the sole judge of the credibility of witnesses. Appellate justices cannot tell that from the record, and for the jury system to work as intended, we have to put our faith in the people who are doing us all a big favor by showing up for jury service in the first place.
