Woman seeks $45 million for surgical tool left in her abdomen

Jury awards $17 million to woman for surgical tool left in her abdomen

A jury awarded nearly $17 million in damages to a woman who carried a 13-inch metal instrume…

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’s abdomen.

Presbyterian Healthcare Services, New Mexico’s largest health care provider, would pay the vast majority of the compensatory and punitive damages sought by Torma’s attorneys.

Her attorneys argued that a smaller amount should be paid by Southwest Women’s Oncology and Southwest’s gynecologic oncologist, Dr. Karen Finkelstein, who performed the surgery.

Both companies were named as defendants in Torma’s 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.

“This instrument wasn’t small and lost inside of her body,” said Alexandra Cervantes, one of Torma’s attorneys. “It extended the entire width of her abdomen. This is what she was living with inside of her body for 58 days.”

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’s surgical personnel mistakenly left the steel retractor in Torma’s 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 “surgical count.”

The mishap was a result of “human error,” Saiz told jurors. “That’s what this was — a human error or an inadvertent mistake that Presbyterian tries extremely hard to prevent” with training, monitoring and other safety measures.

Saiz also argued that Torma is doing well today, is free of pain, and doesn’t 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.

“Human error happens,” she said. “Retention of a surgical item is a risk of any surgery.”

Saiz told jurors that Torma is entitled to $500,000 in compensatory damages, but that no punitive damages are appropriate.

“Presbyterian has accepted responsibility,” she said. “It did not rise to the level of punitive damages.”

Cervantes asked jurors to award $9-11 million in compensatory damages of which Presbyterian should be assessed 89.5% and Southwest Women’s Oncology, 10.5%.

Presbyterian also should be required to pay $35.8 million in punitive damages, Cervantes told jurors. Southwest Women’s Oncology should be required to pay $540,000 in punitive damages, she said.

Punitive damages are appropriate in cases of “wanton conduct,” defined as acts of “utter indifference or conscious disregard for a person’s safety,” Cervantes said.

Finkelstein’s attorney, Bryan Garcia, said in closing arguments that the surgeon relied on Presbyterian’s staff to provide her with an accurate count of the equipment used in the surgery.

“Dr. Finkelstein had absolutely no reason to doubt two consecutive confirmations from Presbyterian staff that all instruments were accounted for,” Garcia told jurors. “A surgeon like Dr. Finkelstein must be able to rely on the Presbyterian professional staff charged with counting the instruments.”

Garcia argued that Finkelstein should not be required to pay compensatory or punitive damages in any amount.

Garcia called Finkelstein a “hero” 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’s abdomen.

“As soon as Dr. Finkelstein saw the scan, she sprang into action to make it right,” he said. “No excuses, no delays.”