Dismissal of kidney suit sought

UTMC asks court to let it recoup costs tied to botched surgery

8/29/2013
BY IGNAZIO MESSINA
BLADE STAFF WRITER
Sarah A. Fudacz and her family have sued the University of Toledo Medical Center over a kidney that was donated by her brother and thrown away before it could be transplanted into her body.
Sarah A. Fudacz and her family have sued the University of Toledo Medical Center over a kidney that was donated by her brother and thrown away before it could be transplanted into her body.

The University of Toledo Medical Center wants a state court to dismiss the lawsuit filed against it by the South Toledo woman whose brother’s kidney was accidentally thrown away before it could be implanted into her during a surgery last year.

On top of that, the medical center asked the Court of Claims in Columbus to let it “recover its costs.”

Sarah A. Fudacz, 24 at the time of the botched Aug. 10, 2012, kidney transplant surgery at UTMC, 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 suit July 29 against the hospital in the Court of Claims.

Jim Arnold, a Columbus attorney 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.

State attorneys handling the defense case for the hospital did not return telephone calls seeking comment.

The medical center on Tuesday filed the answer to the Fudacz family lawsuit, in which it acknowledged the organ was discarded but denies some of the claims. The document ends with a request to dismiss the Fudacz complaint in its entirety at the plaintiffs’ cost. UTMC also on Tuesday filed a motion to dismiss the Fudacz complaint — specially two parts of the lawsuit that claim: “parental loss of consortium,” and “sibling loss of consortium.” The motion to dismiss did not ask the court to dismiss the first count of the lawsuit, which claims medical negligence.

UTMC spokesman Meghan Cunningham said it would be “inappropriate to comment on pending litigation.”

The motion to dismiss states the Fudacz family has “no right to compensation for parental loss of consortium of an adult. The medical center also said, “there is no right to compensation for sibling loss of consortium in a non-death case.”

Live-donor kidney transplants were suspended voluntarily at UTMC after the incident. A number of policy and procedure reviews at the medical center and site visits by oversight bodies followed the incident.

Ms. Cunningham released a written statement last month acknowledging the Fudacz lawsuit and indicating the university has “created a unique environment of safety in our transplant and other programs that is second to none.”

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. The university medical center has not produced public records that could reveal how much taxpayers paid for that travel and other expenses. The Blade requested the documents on Aug. 1.

Dr. Michael Rees, the surgeon who performed the surgery, continues to work at UTMC. Two nurses, Judith K. Moore and Melanie Lemay “had their employment with UTMC terminated and/‚Äčor were forced to retire,” according to the Fudacz 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 sued the hospital Aug. 2 in the Ohio Court of Claims for wrongful discharge, defamation, slander, and libel. Her husband, Patrick Lemay, also is listed as a plaintiff in the lawsuit, which seeks damages exceeding $25,000.

The Fudacz suit details how the surgery went wrong and the aftermath of the incidents. It lists the plaintiffs as 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 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.

Contact Ignazio Messina at: imessina@theblade.com or 419-724-6171 or on Twitter @IgnazioMessina.