On March 15, 2009, Dr. Jun, an orthopedic surgeon, performed surgery to repair a medial meniscus tear in
Katherine Conch's left knee. The surgery occurred at Evergreen Medical Center. Evergreen supplied and
maintained all the surgical equipment used during the operation. Evergreen also supplied the nursing and
technical staff in the operating room. Prior to surgery, Maruca Gray, a surgical nurse, assembled a scalpel,
which was composed of a Number 11 steel blade and a Number 7 handle. Dr. Jun used that scalpel during the
surgery on Ms. Conch on March 15.
During surgery, Dr. Jun made two incisions to Ms. Conch's left knee, creating two portals to provide access to
the surgical site within her knee. During the second incision, the scalpel blade detached from its handle and
lodged in Ms. Conch's knee joint. Neither Dr. Jun nor Mrs. Gray noticed that the blade had detached from the
handle and lodged in Ms. Conch's knee when Dr. Jun handed the scalpel's handle back to Mrs. Gray. Dr. Jun
completed the procedure and then closed the two portals made by his initial incisions.
After closure of the incisions, Dora Francisca, a surgical technician who joined Mrs. Gray and the others in the
operating room, noted that the Number 11 blade was not in its handle. During a search of the operating room,
the blade could not be found.
Dr. Jun ordered an x-ray of Ms. Conch's knee, at which time the missing blade was discovered in her knee
joint. While Ms. Conch remained anesthetized, Dr. Jun reopened the portals that had previously been sutured
closed. After doing so, he located the Number 11 blade within the knee. He then attempted to remove the
blade by using a grasping tool. However, the thin edge of the blade hit soft tissue, bent, and broke into two
pieces.
Dr. Jun decided it would be best to close the incisions and terminate attempts to retrieve the broken blade on
that day. Prior to a second surgery the next day, a CT scan was ordered to find the blade's exact location.
Thereafter, with the assistance of another surgeon, Dr. Jun successfully removed the broken blade from the
knee joint.
Ms. Conch has a fair amount of scarring in her knee from the blade retrieval procedures. She has persistent
problems with pain in the knee, which has limited her walking and weight-bearing activities. Dr. Jun had not
warned her that a scalpel blade could break during surgery.
Ms. Conch hired an attorney to represent her in a lawsuit against Dr. Jun, Mrs. Gray, and Evergreen Medical
Center.
In preparation for trial, the attorney took several depositions. Dr. Jun testified, among other things, that he “saw
no reason why Mrs. Gray could not have seen that the blade of the scalpel was missing when he handed it
back to her.”
Mrs. Gray testified that it was her “responsibility as the scrub nurse to assemble the equipment and
instruments for the case and to assist the surgeon during surgery.” Mrs. Gray also testified that when Dr. Jun
handed the instrument back to her after making the incisions she “did not examine it or observe that the blade
was missing.”
No depositions of expert witnesses have been taken because all of Ms. Conch’s experts were disqualified by
the judge as lacking the requisite knowledge because they were general physicians and not surgeons.
Assess the strength of the patient’s claims against all parties against whom she has a potential valid claim.
As a guide, your answer should be 3 to 4 pages, double-spaced. In your answer, be sure to consider all of the
arguments and counterarguments that each side might make and to indicate which arguments you think are
stronger and why.