Certified Legal Nurse Consultant Millie Mannion Discusses Surgical Retention Cases

VICKIE: This is Millie Mannion, Certified Legal Nurse Consultant. Millie, I wanted to talk with you today about surgical retention issues. I know you’re involved in these cases. Tell us about your involvement in these legal nurse consultant jobs.

MILLIE: I’ve had an opportunity to work with both plaintiff and defense attorneys in cases regarding the retention of a variety of surgical items. We know of course that the most popular one is sponges, but over the last few years we’ve started to see much larger items and much smaller items.

VICKIE: What are the some of the oddest items, large and small, that you’ve seen?

MILLIE: One of the largest items that we see a lot is a malleable retractor that we use to hold the bowel in after abdominal surgery. The nurse will account for that during the initial instrument count, but then sometimes something will distract them and they won’t get the item handed back to them from the surgeon and it gets retained.

VICKIE: That’s always the question, “How does that happen?” And how does it happen?

MILLIE: It really does happen, Vickie, exactly the way it sounds. We account for it by saying, “One retractor up” and then we count the rest of the retractors in the kit. But then something happens – the phone rings, or a beeper goes off and we get distracted. The surgeon isn’t necessarily going to catch on, or he’s letting the resident close and it just gets left behind.

VICKIE: You’re bringing up a good point. For sure, it’s going to be more of a nursing issue than a medical issue in many instances, and the nurses are definitely going to be held accountable in a retention case.

MILLIE: Absolutely! All of the policies and procedures that are now being written by most of the hospitals with the AORN Guidelines and Recommendations, are including nursing as definitely part of any type of litigation.

VICKIE: If you’re on the plaintiff side, how do you prove retention cases?

MILLIE: As the Certified Legal Nurse Consultant on the case, I would sit with the attorney and walk through a timeline of what is the appropriate way in which the count should have taken place. Talk a little bit about what kind of surgery was actually being done so that he has a clear picture of how the item got left in the belly or in the head. We would work through that. We would name some of the players, definitely the circulating nurse, the scrub nurse, the surgeon and even possibly, the anesthesiologist.

VICKIE: Even though I’m sure these legal nurse consultant jobs can be difficult cases to defend, what do you do to help mitigate damages or at least to help defend the case to the level that you can?

MILLIE: As a defense Certified Legal Nurse Consultant, it would be my job to try to help the defense attorney see who the last person was to touch the object and where did the object actually fall within the operation. Usually the biggest part of trying to figure out the puzzle is “When was that item used last?”

VICKIE: That’s an important point. It’s not just a “slam-dunk” because it was left in place. Everybody knows that. It’s more a matter of “Who’s really responsible?”

MILLIE: Absolutely. Also, when working with a defense attorney, I try to help the attorney understand that we need to look at “How did we get the object out?” and “Was there harm to the patient when we took the object out?” Sometimes you can really work with the dollar amount that the plaintiff wants as compared to what the hospital wants to pay.

VICKIE: Plus, I’m sure your role on these legal nurse consultant jobs is to help with the injuries, such as how serious the injuries really are and is the plaintiff alleging more exaggerated injuries than exist.

MILLIE: That is where, from a defense point of view, we want to have a Certified Legal Nurse Consultant, like myself, who has a lot of OR experience, so that I can say there’s not any way that particular retained item could have actually caused the problem alleged.

VICKIE: The other thing that I’m so glad you brought up is that the OR is such a mysterious place to the rest of us who have never worked in the OR. On the surface, the retention of a surgical object can seem like a “slam-dunk” case, but as you’ve pointed out, there are subtleties for how to prepare these cases. A Certified Legal Nurse Consultant who has never worked in the OR should be looking to subcontract with people like you.

MILLIE: I would appreciate that, absolutely. But also from an education point of view, I like to help other people to have an understanding. I want our other CLNC^® consultants to be able to look at the medical records to get a feel for what went on in the operating room and then give me a call so that we can have a nice educated conversation.

VICKIE: And to really look at it in such a in-depth way that the attorney gets why they really need you on surgical retention legal nurse consultant jobs.

MILLIE: Absolutely. I really agree.

VICKIE: Thanks Millie. I appreciate your taking the time today.

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