Woman awarded €13,500 after surgical swab left inside her body
Court rules surgical error caused temporary harm but rejects long-term disability claims
Updated 7.45pm
A woman who had a surgical swab left inside her body after an operation was awarded €13,500 in damages, after a court found the botched surgery had caused her temporary pain and suffering.
However, the court rejected the woman’s claims that it had caused debilitating long-term effects.
The case dates back more than a decade to July 2012, when the woman, Doreen Gouder, underwent a hysterectomy.
She continued to suffer pain and discomfort in the following weeks, eventually returning to hospital in September 2012. A CT scan found that doctors had mistakenly left a surgical swab in her abdomen during the initial procedure, with the woman forced to go under the knife again to have the swab removed.
The woman and her husband argued that the incident left her permanently scarred, causing a series of symptoms, including fatigue, speech difficulties and weakness over subsequent years.
In her testimony, Gouder said she is now unable to stay on her feet for extended periods of time, has to rest frequently throughout the day and struggles to carry out daily tasks such as housework, grocery shopping or carrying laundry.
She said she had also suffered emotional distress as a result of the medical negligence, holding the government’s lead surgeon Mark Formosa responsible.
However, in a judgment handed down on Monday, Magistrate Miriam Hayman found that many of the woman’s symptoms were not caused by the swab being left in her abdomen but by another, unrelated medical condition.
Many of the woman’s symptoms were the result of her myotonic dystrophy, a form of muscular dystrophy which causes progressive muscle weakening, the courts said.
The woman had been diagnosed with myotonic dystrophy some years before the botched hysterectomy.
Ultimately, the court agreed with expert testimony, which said that the swab incident led to the woman suffering a minor long-term psychological effect, quantifying this as a 3% permanent disability.
The courts also dismissed the argument that Mark Formosa, the lead surgeon, was responsible for the mishap. Other members of the surgical team were tasked with counting the swabs and equipment used before finalising the procedure, the court found.
The court concluded that the main liability rested with the government’s principal medical officer, who is responsible for the organisational context in which the blunder took place.
Ultimately, the court said, the government's principal medical officer - an administrative role distinct from that of the lead surgeon - is responsible for the “carelessness, lack of skill, and negligence” demonstrated during the initial surgery.
The court awarded the woman €13,464 in damages after having quantified her loss of earnings caused by the incident.
Lawyers Mario de Marco and Margo Zammit Fiorentino appeared for Mark Formosa. Lawyers Andrew Grima and Michael Tanti Dougall appeared for the government and Doreen Gouder, respectively.