Kentucky Supreme Court Review of Medical X-Rays, Expert Testimony, JNOV, and a $2.5 Million Verdict
A 2005 CT scan revealed a surgical sponge inside Sophia Savage’s abdomen about four years after she underwent a hysterectomy at Three Rivers Medical Center. Sophia had developed abdominal pain, digestive problems, intestinal problems, and other physical symptoms after the December 14, 2001 procedure. Surgeons removed the sponge the day after the CT scan. The operation required the removal and reconnection of three sections of her small intestine and disclosed an infection around the sponge.
Sophia and her husband, Darrell Savage, filed medical negligence claims against the surgeon, the hospital, and other medical providers. Three Rivers disputed when the sponge entered Sophia’s body because she had undergone abdominal operations in 1978 and 1982. The litigation included two jury trials, post-trial motions, a Kentucky Court of Appeals reversal, and a Kentucky Supreme Court decision reinstating a $2.5 million judgment in Savage v. Three Rivers Medical Center, 390 S.W.3d 104 (Ky. 2012).
Key Developments in Savage v. Three Rivers Medical Center
1978 and 1982: Sophia Savage Underwent Earlier Abdominal Operations
Sophia underwent a caesarean section in 1978 and gallbladder surgery in 1982. Both procedures involved invasive entry into her abdominal area. Three Rivers later argued that the retained sponge could have been left during either operation. The Savages alleged that it was left during the 2001 hysterectomy.
1993: Abdominal X-Rays Were Taken After a Fall
Sophia received abdominal x-rays at Appalachian Regional Hospital in Williamson, West Virginia, after an accidental fall. She obtained a copy of the films and kept them at home, while the hospital later destroyed its originals under its record-retention practices. During the litigation, Dorothy Cooke and a radiologist testified that no surgical sponge was visible within the portion of Sophia’s abdomen shown on the films.
December 14, 2001: Hysterectomy Was Performed at Three Rivers Medical Center
Dr. Curtis Edens performed Sophia’s hysterectomy at Three Rivers Medical Center. The hospital provided the operating-room facilities and surgical support staff. Sophia later alleged that Dr. Edens and three hospital nurses failed to remove a sponge before the procedure ended. Dr. Edens settled the claims against him before the first jury trial.
2005: CT Scan Revealed the Retained Surgical Sponge
Sophia experienced intestinal and digestive problems, pain, and other physical symptoms in the years after the hysterectomy. A CT scan in 2005 revealed a surgical sponge inside her abdomen. Surgeons removed it the following day and found infection, inflammation, scar tissue, and bowel damage. The surgeon removed and reconnected three sections of small intestine, with about 18 inches of intestine removed in total.
2006: The Savages Filed a Kentucky Medical Negligence Lawsuit
Sophia and Darrell filed suit in Lawrence Circuit Court. They alleged that the sponge was left during the December 2001 hysterectomy through negligence by Dr. Edens and members of the hospital’s operating-room staff. The complaint also named other individual medical providers. Those defendants either settled the claims against them or were dismissed before the case against Three Rivers proceeded to trial.
June 2008: First Jury Returned a Verdict Against Three Rivers
The first trial took place in June 2008. The jury awarded Sophia $61,178.08 in medical expenses and $800,000 for past and future pain and suffering. It awarded no damages to Darrell for loss of consortium. Three Rivers challenged the admission of the 1993 x-rays after problems with their authentication were discovered.
July 17, 2008: Trial Court Set Aside the First Verdict
The trial judge determined that the 1993 x-rays had not been properly authenticated as hospital business records. The person who certified the films was not the records custodian, and the hospital no longer possessed the originals. The court set aside the verdict, denied Three Rivers’ request for judgment notwithstanding the verdict, and ordered a new trial. An appeal from the new-trial order was later dismissed because the order was interlocutory.
March 2009: Second Jury Awarded $2.5 Million
During the second trial, Sophia testified about when the x-rays were taken, how she obtained them, where she stored them, and how she later gave them to her attorneys. The trial court found that this testimony supplied a proper foundation and admitted the films. Dorothy Cooke testified that no surgical sponge was visible within the portion of Sophia’s abdomen shown on the x-rays. The jury awarded $65,968.70 in past medical expenses, $1,934,031.30 for Sophia’s past and future pain and suffering, and $500,000 for Darrell’s loss of consortium, for a total of $2.5 million.
June 18, 2010: Kentucky Court of Appeals Reversed the Judgment
The Kentucky Court of Appeals reversed the second judgment in a two-to-one decision. The majority concluded that the first-trial evidence was insufficient once the improperly authenticated x-rays were removed from consideration. It ruled that the trial judge should have entered judgment notwithstanding the verdict for Three Rivers instead of ordering another trial. The appellate court directed the dismissal of the claims against the hospital.
October 25, 2012: Kentucky Supreme Court Reinstated the Judgment
The Kentucky Supreme Court reversed the Court of Appeals and reinstated the second judgment. It held that Kentucky Civil Rule 50.02 allowed the trial judge to order a new trial rather than grant judgment notwithstanding the verdict. The Court upheld Dorothy Cooke’s limited expert testimony concerning the 1993 x-rays. It also found that Dr. Collela’s testimony did not identify the standard of care applicable to Dr. Edens or establish a specific breach by the surgeon, so the trial court properly refused to submit Edens’ fault to the jury. The Court rejected the hospital’s damages challenge and restored the $2.5 million judgment.
Expert Witness Testimony in the Retained Sponge Litigation
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Dorothy Cooke, Nursing and X-Ray Interpretation Expert Witness
Dorothy Cooke testified for the Savages about the 1993 x-rays. She was a nurse practitioner with approximately 40 years of nursing experience, a Ph.D. in health organization research, and military experience examining x-rays for bullets and shrapnel. Based on her experience identifying foreign metal on x-ray films, she testified that no surgical sponge was visible within the portion of Sophia’s abdomen shown on the images.
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Dr. Collela, Surgical Standard-of-Care Expert Witness
Dr. Collela, an expert retained by the Savages, testified about operating-room responsibilities for sponge removal and counting. He described the sponge count as a collective responsibility involving the surgical team. The Kentucky Supreme Court found that his testimony did not identify the specific standard of care governing Dr. Curtis Edens or connect the surgeon’s conduct to a breach of that standard.
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Surgery Expert Witness
Surgeons who offer expert insight examine how the operative steps, anatomical exposure, and surgical decision-making relate to the risk of leaving materials behind. In such cases, they may help outline what is ordinarily expected in procedures like a hysterectomy and whether postoperative symptoms make sense given the later discovery. Their analysis assists fact-finders in connecting medical events over time, especially when a patient has undergone multiple abdominal surgeries.
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Infectious Diseases Expert Witness
Foreign objects can cause infection, inflammation, and long-term internal reactions. An infectious-disease expert may assess how the body responds to retained material and whether the patient’s symptoms are consistent with those reactions. The expert may also evaluate whether the infection observed during removal surgery was consistent with prolonged exposure to the retained sponge.
Kentucky Evidence and Trial Rules in Savage
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Kentucky JNOV and New-Trial Standards
A judgment notwithstanding the verdict, commonly called JNOV, allows a court to enter judgment against the party that won at trial when the evidence cannot legally support the verdict. Kentucky Civil Rule 50.02 also permits a trial judge to order a new trial. The Kentucky Supreme Court held that the trial judge had discretion to select a second trial after finding that the x-rays had been improperly admitted during the first proceeding.
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Authentication of Historical Medical X-Rays
Medical images must be authenticated before they may be admitted into evidence. At the second trial, Sophia explained when the films were created, how she obtained her copy, where she stored it, and how she later gave it to her attorneys. Because the hospital’s originals had been destroyed and were no longer available, the court admitted Sophia’s copy under Kentucky Rules of Evidence 901, 1003, and 1004.
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Expert Witness Qualification Under Kentucky Rule of Evidence 702
Kentucky Rule of Evidence 702 allows a witness to qualify through knowledge, skill, experience, training, or education. The qualification must correspond to the subject of the proposed testimony. Cooke’s experience examining x-rays for bullets and shrapnel supported her limited testimony about whether a surgical sponge’s metal tag appeared on the films.
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Res Ipsa Loquitur in Retained Surgical Sponge Claims
Res ipsa loquitur may allow a jury to infer that negligence occurred when a surgical item is left inside a patient. In this case, the doctrine could not by itself identify Three Rivers as the responsible provider because Sophia’s 1978 and 1982 operations had not been excluded through expert evidence. Separate circumstantial evidence included the absence of symptoms before the 2001 operation, the location where the sponge was found, and the failure to encounter a preexisting sponge during the hysterectomy.
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Fault Allocation to a Settling Surgeon
A defendant seeking to allocate fault to a settling medical provider must present sufficient evidence of the provider’s standard of care, conduct, and breach. Dr. Collela’s testimony referred to shared operating-room duties but did not examine Dr. Edens’ conduct or identify how he violated the applicable standard. The trial court therefore declined to include Dr. Edens in the fault-apportionment instruction.
Conclusion
After the first jury verdict was set aside because of defects in the admission of the 1993 x-rays, the case proceeded to a second trial with a new evidentiary foundation for the films. The second jury awarded Sophia and Darrell Savage $2.5 million. The Kentucky Court of Appeals ordered the claims dismissed, but the Kentucky Supreme Court reversed that ruling, upheld the second-trial decisions, and reinstated the Lawrence Circuit Court judgment.
