Posted on 12/03/2003 2:11:57 PM PST by toddst
As the former state cabinet secretary whose duties included overseeing health care, Masten Childers II has spent a lot of time dealing with hospitals.
Case in point: Howard Chapman, a patient in whose abdomen UK surgeons left a blue surgical towel, an oversight that was not discovered for more than two years after he had kidney surgery.
Chapman, who is represented by Childers, sued UK, two doctors and a scrub technician in September.
Since that filing, UK has not denied that its doctors and a scrub technician left the towel behind, or that it caused Chapman serious problems and had to be removed five months ago.
Instead, the hospital is successfully standing its ground by claiming sovereign immunity -- that it is immune from malpractice claims filed in state court because the hospital is government-owned.
"This area of the law, we believe, is well settled," UK's attorney, Bruce Gehle, told Fayette Circuit Judge Pamela Goodwine yesterday. Gehle relied on a state Supreme Court ruling for UK in a wrongful death case that was made law in 1997.
Since then, the question of UK's immunity has barely been challenged, Gehle said: "We've never had a case where UK and its hospital have not been dismissed. ... The law is so clear that we should be the ones entitled to expenses involved in arguing" the sovereign immunity matter.
Patients who are wronged at UK are instead allowed to file claims against the hospital with the state Board of Claims, which can reimburse them for a limited amount of medical expenses, lost wages and other costs attributable to mistakes. But no payment is made for pain and suffering or punitive damages.
In ruling yesterday that UK should be dismissed from the Chapman case, too, Goodwine acknowledged that she wasn't sure she agreed with the law -- she just had to follow it. Chapman's claims will continue against the two doctors, William McRoberts and David Kagey, and the scrub technician, Randall Johnson.
In a deposition taken last week, Johnson said nobody counted surgical towels in UK's operating rooms and that he wasn't shocked that a towel was left inside a patient, although he didn't recall Chapman, who is from Freeburn in Pike County.
Childers is prepared to take the suit against UK to higher courts because the constitutional issues were not argued before the Supreme Court when it made its 1997 ruling.
UK officials admit in sworn statements that the hospital directly competes with other hospitals, including Central Baptist and Saint Joseph, that are not immune from malpractice lawsuits, Childers said.
He said that creates two separate classes of hospitals -- one that can do whatever it pleases and the others, which are held legally accountable for their errors.
Sovereign immunity, he said, is rightly intended to protect government from lawsuits -- but only in those activities that are peculiar to government, such as law enforcement, road systems and sewerage.
When government engages in an activity that competes with private enterprise, immunity gives government an unfair and unjust advantage, Childers said.
Gehle said, however, that UK's hospital serves a public purpose -- teaching medical students -- that no other hospital does.
By that measure, Childers said, UK's "College of Engineering can go out and start competing against Ford, Toyota and General Motors. If they build another Pinto and hundreds of thousands die, they would have sovereign immunity."
But, Goodwine noted, building cars is not a necessary university lesson for budding engineers.
Nor is it necessary, said Childers, for UK to have its own hospital: Its medical college got on without one until 1962, and it sends residents out to private hospitals, including to St. Claire Medical Center in Morehead.
St. Claire was recently sued for leaving a surgical towel inside a patient for nine years.
To quote from the article:
. . . Johnson said nobody counted surgical towels in UK's operating rooms and that he wasn't shocked that a towel was left inside a patient . . .
THIS is responsible hospital management? Comments, anyone?
That's government for you.
The solution is to grant limited liability to everyone, not just socialist enterprises. That would put the lawyers out of business and make medical care affordable again. It would be so inexpensive, socialized healthcare would not be needed, most everyone could afford their own.
Mistakes happen and life isn't fair. Having a human doctor make a human mistake should not result in a lotto payout.
Sounds like you are a physician or nurse, and 10-4 on your comment. My father-in-law required everything to be counted and threw a fit if any error was made. Neurosurgery has a very low tolerance for error.
No doubt you will. The medical community needs all the well trained and dedicated help it can get.
My neighbor is a male OR nurse and he says the youngsters coming in are generally very well prepared.
I'm confident there are many highly dedicated professionals serving in the UK hospital. However, clearly there are problems and some folks should be removed from the system.
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