Lisa Zenzen Baker, 1961-2003


Sunday, May 04, 2008


Misplaced surgical sponge
brings malpractice lawsuit

By David Baker
Posted Sunday, May 4, 2008

A woman who had surgery to remove an ovarian cyst is suing a doctor and a hospital claiming that a second surgery was needed to remove a surgical sponge left in her body during the first operation.

The lawsuit, filed by Melanie Kiefer and her husband, Christopher, names Dr. John H. Malfetano and Albany Memorial Hospital. The hospital is owned by Northeast Health, Inc. of Troy.

According to the suit, Melanie Kiefer went into the hospital on Northern Boulevard in Albany in March 2004 to have a cyst removed from an ovary, but needed a second operation to remove a surgical sponge that had been left in her body during the first surgery.

As a result, the suit says, Kiefer “was force to undergo unnecessary general anesthesia… and developed, among other things, peritonitis, small bowl obstruction, scar tissue and adhesions.”

Kiefer’s lawsuit seeks an unspecified amount in damages for herself and her husband.

The suit was filed in April 2006. A search of newspaper computer achieves produced no indication that it was reported.

The case is scheduled to go to trial before Albany County state Supreme Court Judge Roger McDonough on June 9.

The Kiefers live in Ulster County. They are represented by William Cade of the Cade and Saunders law firm in Albany. Attorney E. Stewart Jones of Troy is also listed on the court’s Web page as representing the plaintiffs.

The defendants’ attorneys are Carter, Conboy, Case, Blackmore, Maloney & Laird of Albany.


Defending the indefensible

Leaving a foreign object inside a patient is the classic case of medical malpractice. It is widely considered to be totally indefensible.

But despite that, Albany Memorial Hospital has been fighting the Kiefer case for the past two years, and is apparently ready to go all the way to a trial.

Maybe it will be tried. But the chances are that after doing everything possible to run up the plaintiffs’ attorneys expenses and the Kiefers’ stress, the insurance carrier will settle just before details of the case would be presented in open court, where a jury could make a big award that might be reported in the media.

The fear of bad publicity is the reason that the medical community has worked to keep stories about virtually every malpractice claim out of compliant Capital Region newspapers for the past 10 years. Meanwhile, the papers have enjoyed a steady stream of advertising revenue from those same medical providers, revenue they would be unlikely to receive if they were regularly reporting on cases like the one filed by the Kiefers.

This betrayal of public trust by the media has been in plain sight for years but went unnoticed. Had Samaritan Hospital not put up its routine defense when Lisa died while in its care, I would never have become aware in 2004 that no local malpractice case had been reported since 1997, or that state legislators were ignoring their oversight responsibilities while taking tens of thousands of dollars from the healthcare providers they are sworn to regulate.

That’s why a new Web page will soon be launched to provide details of medical malpractice cases pending in the Capital Region. And there are dozens of them. So far, I have looked at claims against only one medical provider – the area’s largest – filed in only two counties. There are two more hospitals in Albany County, two in Schenectady County and another one in Troy, as well as many individual physicians who have lawsuits pending against them that are still to be examined.

I recognize this means that people will be publicly accused with no means of rebutting the accusation, but that’s a consequence of agreeing to the insurers’ harsh policies.

For years, medical providers have allowed their insurers to “deny, deny, deny.” But that sword has two edges. Those same providers can’t complain if the response now is “accuse, accuse, accuse.”

There are some ways to change that. One, reduce medical errors. Despite all the talk, preventable errors are still killing and injuring about the same number of people every year.

Two, immediately acknowledge errors when they occur. This would avoid many lawsuits, most of which are filed initially not to get huge amounts of money but to get answers after the door is slammed.

Of course, once a lawsuit is filed, money has to be part of it, if only because plaintiffs’ attorneys don’t sue for answers; they sue to get their 29 percent (plus costs) of any pay out.

Most medical malpractice cases are settled (despite what the medical community would like you to believe about all those “frivolous” lawsuits). But plaintiff’s don’t always win. In Lisa’s case I am on my own and it has reached a critical point, at which the insurance company’s enormous advantage in expertise and resources may well mean the claim does not succeed.

But I will not let Lisa’s unnecessary death go unnoticed, her short life to have brought no good. I will turn my attention from a situation in which the defendants have had the upper hand to one where I am in control, and which will benefit others long after Lisa’s life was ended too soon.

The defendants may ‘win’ this time. But for those who fought it, and for the entire medical, legal and media community in the Capital Region, it may well turn out to be the costliest case they didn’t lose.