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Nathan I. Finklestein: Bethesda Lawyers Extract Record Breaking Settlement in Medical Malpractice Suit

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Bethesda, MDA jury in Bethesda was so enraged by a Maryland woman's medical horror story, that it awarded her a record-breaking $4.9 million in damages when a sponge was left behind in her abdomen after a routine hysterectomy.

The verdict in the case was obtained by Nathan I Finklestein and his partner, Rob Goldman from the firm, Finkelstein and Horvitz PC.

"It is probably the largest, if not one of the largest medical verdicts in Montgomery County," says Nathan I Finklestein. "The defense has just filed some papers and they allege that by a significant margin, no jury has ever found this much in non economic damages."

Shortly after having a routine hysterectomy in July 2005, a Maryland woman in her fifties told her surgeon she was feeling abdominal pain, she felt nauseous, had chills and generally felt unwell.

It was soon discovered that a surgical sponge, the size of a table napkin had been left behind inside the patient's abdominal area.

During the medical malpractice trial in Bethesda, Finklestein says the jury heard how the woman's surgeon reacted to the news about the sponge. Finklestein says "the surgeon, when she contacted him said, 'well it is not a big deal, you shouldn't really worry about it, call my office the first of the year and we'll talk about the options, you could live to be a 110 with this'."

She decided to see another doctor, but before he could go ahead with an operation to remove the sponge, the woman developed a bowel obstruction and had to have emergency surgery.

"They removed an abscess the size of a cantaloupe, larger than a grapefruit, the size of a cantaloupe with a sponge in it," says Finklestein sitting in his office in downtown Bethesda. "So we went to trial and the jury gave us $4.9 million in damages, which was for pain and suffering."

Given the extraordinarily large amount awarded by the jury, Finklestein asked them how they came to their decision.

"We talked to some of the jurors and I think it was a combination of the attitude of the doctor, the sort of unwillingness to take responsibility. "

Finklestein says the doctor who performed the first surgery defended his actions by saying that doctors rely on nurse's counts to keep track of surgical sponges. However, Finklestein successfully argued "the medical literature has warned doctors for 25 years not to do that, that there is human error in the nurse's counts."

"The physician took the position that he complied with the standard of care," Finklestein says, "by relying exclusively on the surgical count that the nurse did. The jury did not buy that."

Maryland law caps non-economic verdicts at $650,000. As a result, the judge in the case reduced the verdict to $1.3 million, the maximum amount first for leaving the sponge behind, then the maximum again for the woman's pain and suffering.

There are thousands of these kinds of cases every year, according to Finklestein. He believes because of the jury's strong reaction in this case, surgeons in the future may pressure hospitals to provide them with equipment to scan every patient for left behind instruments or sponges, before they leave the operating room.

Finklestein believes the record-breaking amount of the jury's verdict may also lead to legal challenges to the $650,000 cap on non-economic personal injury cases.

The defense is currently filing motions and is expected to appeal the verdict.

Nathan I. Finklestein is a graduate of the Mercer University School of Law (1972) in Macon, Georgia. He has been a practicing lawyer in Bethesda, Maryland since 1991 and is a partner in the firm of Finklestein and Horvitz P.C. Rob Goldman is also a partner in the firm.



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