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Woman seeks $45 million for surgical tool left in her abdomen
The Bernalillo County Courthouse
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Attorneys asked jurors Monday to award more than $45 million to a woman who underwent a 2019 surgery at Presbyterian Hospital that left a 13-inch metal instrument in her abdomen for nearly two months.
Surgical personnel mistakenly left the surgical retractor on Jan. 29, 2019, after removing a 75-pound benign tumor from Michelle Torma鈥檚 abdomen.
Presbyterian Healthcare Services, New Mexico鈥檚 largest health care provider, would pay the vast majority of the compensatory and punitive damages sought by Torma鈥檚 attorneys.
Her attorneys argued that a smaller amount should be paid by Southwest Women鈥檚 Oncology and Southwest鈥檚 gynecologic oncologist, Dr. Karen Finkelstein, who performed the surgery.
Both companies were named as defendants in Torma鈥檚 2021 lawsuit in 2nd Judicial District Court alleging medical negligence and other claims.
Attorneys made closing arguments Monday on the fifth day of trial before Judge Denise Barela-Shepherd. Jurors will continue deliberations on Tuesday.
鈥淭his instrument wasn鈥檛 small and lost inside of her body,鈥� said Alexandra Cervantes, one of Torma鈥檚 attorneys. 鈥淚t extended the entire width of her abdomen. This is what she was living with inside of her body for 58 days.鈥�
Michelle Torma underwent a second surgery on March 28, 2019, after a CT scan identified the long, rectangular object in her abdomen. It was found to be a retractor left there by a surgical team two months earlier.
Attorneys for Presbyterian Healthcare Services have acknowledged that the hospital鈥檚 surgical personnel mistakenly left the steel retractor in Torma鈥檚 abdomen after a complex surgery to remove a massive tumor.
Brenda Saiz, an attorney for Presbyterian Healthcare Services, acknowledged that Presbyterian staff were at fault for failing to account for all the surgical equipment in a process called a 鈥渟urgical count.鈥�
The mishap was a result of 鈥渉uman error,鈥� Saiz told jurors. 鈥淭hat鈥檚 what this was 鈥� a human error or an inadvertent mistake that Presbyterian tries extremely hard to prevent鈥� with training, monitoring and other safety measures.
Saiz also argued that Torma is doing well today, is free of pain, and doesn鈥檛 require ongoing medical care.
Punitive damages are not appropriate in this case because Presbyterian has policies and measure in place to prevent the retention of surgical equipment, Saiz said.
鈥淗uman error happens,鈥� she said. 鈥淩etention of a surgical item is a risk of any surgery.鈥�
Saiz told jurors that Torma is entitled to $500,000 in compensatory damages, but that no punitive damages are appropriate.
鈥淧resbyterian has accepted responsibility,鈥� she said. 鈥淚t did not rise to the level of punitive damages.鈥�
Cervantes asked jurors to award $9-11 million in compensatory damages of which Presbyterian should be assessed 89.5% and Southwest Women鈥檚 Oncology, 10.5%.
Presbyterian also should be required to pay $35.8 million in punitive damages, Cervantes told jurors. Southwest Women鈥檚 Oncology should be required to pay $540,000 in punitive damages, she said.
Punitive damages are appropriate in cases of 鈥渨anton conduct,鈥� defined as acts of 鈥渦tter indifference or conscious disregard for a person鈥檚 safety,鈥� Cervantes said.
Finkelstein鈥檚 attorney, Bryan Garcia, said in closing arguments that the surgeon relied on Presbyterian鈥檚 staff to provide her with an accurate count of the equipment used in the surgery.
鈥淒r. Finkelstein had absolutely no reason to doubt two consecutive confirmations from Presbyterian staff that all instruments were accounted for,鈥� Garcia told jurors. 鈥淎 surgeon like Dr. Finkelstein must be able to rely on the Presbyterian professional staff charged with counting the instruments.鈥�
Garcia argued that Finkelstein should not be required to pay compensatory or punitive damages in any amount.
Garcia called Finkelstein a 鈥渉ero鈥� for performing life-saving surgery after Torma was diagnosed with a massive tumor. She also acted immediately after a CT scan identified the surgical retractor in Torma鈥檚 abdomen.
鈥淎s soon as Dr. Finkelstein saw the scan, she sprang into action to make it right,鈥� he said. 鈥淣o excuses, no delays.鈥�
