A Toledo woman, whose brother’s kidney was accidentally thrown away at the University of Toledo Medical Center before it could be implanted into her, had tried along with her family to work out a financial settlement with the school, their attorney said on Wednesday.
But an agreement couldn’t be reached, so the entire family of eight from South Toledo has instead sued the medical school.
Sarah A. Fudacz, who was 24 at the time of the botched Aug. 10, 2012, kidney transplant surgery, was supposed to have been given a kidney taken from her younger brother, Paul Fudacz, Jr., but the organ was mistakenly thrown away by a nurse after it was removed.
Ms. Fudacz, Mr. Fudacz, their parents, and their four siblings filed a lawsuit Monday against UTMC in the Court of Claims in Columbus.
Jim Arnold, of James E. Arnold & Associates, LPA, a Columbus-based law firm representing the Fudacz family, said UTMC was accommodating after the accident — helping to find Ms. Fudacz a new kidney and paying travel expenses to Colorado for that surgery. But the Ohio attorney general’s office, which represents UTMC, the former Medical College of Ohio, was unwilling to accept some of the family’s demands, he said.
“The state’s position is that the claims made by the parents are noncompensable and they should get nothing. I don’t agree,” Mr. Arnold said. “The state’s view is they needed to be in the operating room to have a claim.”
Live-donor kidney transplants were suspended voluntarily at UTMC after the incident occurred. A bevy of policy and procedure reviews at the medical center and site visits by oversight bodies followed the incident.
UTMC spokesman Meghan Cunningham sent a written statement Wednesday acknowledging the lawsuit and indicating the university has “created a unique environment of safety in our transplant and other programs that is second to none.”
Other hospitals and programs “continue to learn from our experiences to improve patient safety and provide the highest levels of care,” the statement said. “While we cannot discuss the specific health of our patients or pending litigation, we remain saddened by this unfortunate situation and express our deepest feelings to our patients and their families. Out of this difficult situation, health care quality and patient safety have been dramatically transformed.”
Larry Burns, the university’s vice president for external affairs, said he did not know if or how much the university may have paid out to the family so far to cover expenses, such as travel to Colorado.
Mr. Burns said Dr. Michael Rees, the surgeon who performed the surgery, continues to work at UTMC.
“He’s back doing transplants and seeing patients and doing great work,” Mr. Burns said.
Two UTMC nurses, Judith K. Moore and Melanie Lemay “had their employment with UTMC terminated and/or were forced to retire,” according to the lawsuit. UTMC’s administrator of surgical services, Edwin Hall, was placed on paid administrative leave, the lawsuit states.
Ms. Moore, a part-time nurse who discarded the contents of the slush machine — including the kidney — before the surgery was finished, resigned on Sept. 10.
UTMC fired Ms. Lemay, a full-time registered nurse who was the circulating nurse during the surgery. Ms. Lemay, who relieved Ms. Moore while Ms. Moore went on a lunch break, failed to update her on the status of the surgery when she returned from her break, among other procedural infractions, according to disciplinary records.
Ms. Lemay, who did not file a wrongful termination lawsuit, instead filed a complaint with her union, AFSCME Local 2415, on Sept, 24, contesting the firing. Ms. Lemay was a 30-year employee of UTMC and its predecessor.
The grievance accuses UTMC of “publicly making an example of Ms. Lemay and ... attempting to take the public eye off of the University of Toledo Medical Center’s management’s responsibility in this case. Ms. Lemay was not the only individual in the O.R. suite, and was not the primary authority figure over the organ that was removed.”
The family’s suit details how the surgery went wrong and the aftermath of the incidents. It lists the plaintiffs Ms. Fudacz; Mr. Fudacz; their parents, Paul Fudacz, Sr., and Ellen Fudacz; Christopher, 26, John, 17, and Joseph, 11, brothers of Sarah and Paul, Jr., and Marie Fudacz, 23, their sister. Members of the family could not be reached for comment on Wednesday.
The suit said the plaintiffs individually demand judgment against UTMC in excess of $25,000, plus interest, the costs of the suit, and any other relief the court deems appropriate.
“Paul, Jr.’s kidney was considered a ‘perfect match’ for Sarah. Sarah seeks damages she has suffered and will continue to suffer due to the loss of Paul, Jr.’s perfect kidney. Paul, Jr., seeks damages he has suffered and will continue to suffer for having to undergo a painful and risky surgery, and for having to live the rest of his life with only one kidney, all in vain,” stated the lawsuit.
“At approximately 1 p.m., while Paul, Jr., was in the process of being ‘closed’ by Dr. Rees, Judith K. Moore, R.N., a nurse employed by the UTMC, returned to Paul, Jr.’s operating room after taking a lunch break,” the lawsuit states. “Nurse Moore removed the contents of the slush machine (which still included Paul, Jr.’s kidney), walked down the hall to a utility room, and flushed the contents (including Paul, Jr.’s kidney) down a disposal “hopper” used for the disposal of medical waste.”
The suit said the kidney was later recovered and deemed unusable because it was intermingled with other infected and/or nonsterile medical waste.
“Horrified at what had happened to their children, Paul, Sr. and Ellen immediately went to see Sarah in recovery, who was awake but in disbelief and angry. Sarah told her parents how, when she first woke up and saw that she did not have an incision from a transplant surgery, she immediately thought Paul had died in surgery and that this prevented the transplant from happening,” the suit states.
“While the news of what actually happened relieved Sarah’s concern for Paul, Jr., it did nothing to relieve her, her parents, and the entire Fudacz family’s fear about Sarah’s future prognosis and life expectancy given that Paul, Jr.’s kidney had been destroyed through UTMC’s gross negligence and recklessness,” it said. “Later, after recovering from anesthesia, Paul, Sr., and Ellen were forced to tell Paul, Jr., that his sacrifice, intended to save his sister’s life, was in vain.”
On Nov. 13, 2012, Ms. Fudacz received a replacement kidney transplant during a surgery in Colorado.
“In the months between the botched transplant surgery at UTMC and her successful transplant, Sarah suffered through additional painful dialysis, four painful surgeries related to her dialysis treatments, and was forced to live through the uncertainty of whether she would ever find a kidney suitable for transplant before dying,” the lawsuit states. “When compared to Paul, Jr.’s kidney, Sarah’s new kidney is a poorer match and of poorer quality. Because of that, she has a higher risk of rejection ... and in all likelihood, she will need another replacement transplant sooner than she otherwise would have.”
Mr. Arnold said Ms. Fudacz did not receive a higher priority for a new kidney and would have been on the “bottom” of the donor-recipient waiting list. But she did receive a new kidney through the chain of kidney donations, which was pioneered by Dr. Rees and his Alliance for Paired Donation Inc.
“Sarah doesn’t blame the surgeon because he didn’t throw the kidney away, but he was the captain of the ship and someone has to have responsibility,” Mr. Arnold said.
By state law, lawsuits must be decided in the state Court of Claims and not by a jury because UTMC is a state institution. Medical staff involved in the alleged negligence are not named as parties to the lawsuit because state employees are given civil immunity.
According to the state Court of Claims Web site, the court was created in 1975 to permit “actions to be brought against the state which were previously barred by the doctrine of sovereign immunity.”
According to state law, while there is no limit on compensatory damages that represent out-of-pocket costs such as loss of wages and medical bills, noneconomic loss, such as pain and suffering, cannot exceed $250,000 per plaintiff, and up to a maximum of $500,000 per incident. If the injury is determined to be a “catastrophic injury,” such as the loss of use of a limb or bodily organ, the maximum award would increase to $500,000 per plaintiff and up to $1 million per incident.
Punitive damages could not exceed twice the economic damages awarded.
Jim Nooney, a medical malpractice attorney with the Toledo firm Eastman & Smith Ltd., said damages are often awarded for “pain and suffering, medical expenses, lost wages, lost earning capacity — things that are specific.”
Regarding the lawsuit, of which he was not involved, Mr. Nooney said: “I’m not surprised a case was filed. Once that was announced, you had to think there was a lawsuit coming.”
Staff writers Vanessa McCray and Jim Provance contributed to this report.