Partner Michael Badowski Wins on Appeal

In a case tried and argued by Margolis Edelstein partner, Michael Badowski, the Pennsylvania Supreme Court reversed and vacated a $750,000 jury award in a retained sponge case with a factual twist.

In 1993, the Plaintiff had a c-section delivery at our client Hospital. In 1997, she developed abdominal pain which prompted an exploratory laparotomy during which a retained surgical sponge was detected. Plaintiff filed suit in Franklin County and recovered a significant award. Plaintiff again became pregnant and in 1999 underwent a 2nd c-section delivery at a different hospital. Seven years later, in 2006 a 2nd retained sponge was discovered by happenstance from a CT scan. Plaintiff again filed suit against our client hospital. Issues related to the statute of limitations and tortfeasor identification rule formed the basis for summary judgment motions which were denied by the trial court. The case proceeded to trial resulting in a $750,000 award for the Plaintiff. On appeal, Mr. Badowski successfully argued that the case should never have been permitted to proceed to trial insofar as the Plaintiff could not prove from which of her three surgeries and at which of the two hospitals the 2nd sponge had been retained. Under Pennsylvania law, Plaintiffs maintained the burden of proving which of the two possible healthcare facilities was responsible for the retention of the surgical sponge discovered in 2006. The two hospitals associated with the surgical procedures performed in 1993, 1997 and 1999 were not joint tortfeasors and only one of the two could be liable with the other being completely without fault. Only one of the three procedures could have been responsible for the 2006 discovered retained sponge. Under established law in Pennsylvania, it was the Plaintiffs’ burden to prove, by legally competent and non-contradictory evidence, which one of the possible non-joint tortfeasor defendants were responsible for the 2nd sponge’s retention. This Plaintiffs could not do and the Pennsylvania appellate courts agreed and reversed and vacated the jury award.