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Hospital tried to block Dept. of Health probe, records show

When a sponge gets left in a patient’s body in an operation, the Department of Health files charges against the surgeon, and sometimes the nurse.  But what if the hospital itself was partly responsible? DOH can’t do a thing. A different agency regulates hospitals.

In frustration, the Board of Medicine today dismissed charges against Miami obstetrician-gynecologist Laurel Anne King, who was the surgeon in a forgotten-sponge case. The nurse and two surgical technicians had all said the sponge count was correct.

Board members said the University of Miami Hospital was partly responsible for the error because it allowed the surgical techs to come and go during the operation, lending confusion to the sponge count. The board wanted DOH to take up the matter with the hospital, but it can't. Hospitals, nursing homes and other facilities are regulated by the Agency for Health Care Administration.

“The Department of Health has no jurisdiction over institutions,” complained board member Dr. Nabil El Sanadi.  “The only thing you can do is make a request.”

The case illustrates the difficulty that a state system set up to discipline individual practitioners has in dealing with the kinds of errors that frequently occur in hospitals. Such errors usually involve multiple errors of commission and omission that amount to a "systems failure."

It also offers an example of how the state's decision to divide health-care regulation between two agencies can lead to complications.

According to DOH records, the UM Hospital’s risk management department sent the state a “Code 15” report on the error, as the law requires. Typically such reports go to AHCA, which shares them with DOH.

Records show the patient was a 64-year-old woman who had advanced cancer; the operation was scheduled to reduce the tumor and fluid build-up. When she developed an abscess a couple of weeks later, a scan showed a foreign body in the abdomen.

King operated to remove what turned out to be a laparotomy sponge, records show. The patient went to a nursing home and died from the cancer six months later. No lawsuit was filed over the incident.

When DOH sought a subpoena for records, UM Hospital’s attorney Monica Rodriguez objected to release of nearly everything requested, according to the report by DOH investigator Robert Radin. Rodriguez said the witness statements and other materials from the hospital’s internal investigation were  confidential and that it was hospital policy not to allow staff to be interviewed on matters that might lead to litigation.

However, DOH was able to obtain the patient’s medical record and interview the assistant surgeon and circulating nurse, Christine Mercado, one of the three women in the operating room who had said the sponge count was complete. State records show that DOH filed complaints against both King and Mercado. On March 30, the Board of Nursing accepted a settlement with Mercado that called for a $250 fine and some courses.

At King’s hearing today in Tampa, the Board of Medicine threw out a negotiated settlement calling for a  $5,000 fine. Chairman Jason Rosenberg said it’s not the doctor’s job to count the sponges, which can number in the scores or even hundreds in a complicated operation.

Board members said they wanted to see doctors have more authority over what goes on in the operating room. They wanted DOH to do something about it, but were reminded that DOH has no authority over hospitals.

In that case, they said, there needs to be more cooperation between DOH and AHCA. Many errors that occur in hospitals are a result of a failure in the system, they said, rather than the fault of an individual health practitioner.

DOH General Counsel Jennifer Tschetter told the board that before its next meeting, in October, “We will reach out to our sister agency and fix what is a broken system.”

--Health News Florida is an independent online publication dedicated to journalism in the public interest. Editor Carol Gentry can be reached at  727-410-3266  or by e-mail.