A woman who suffered a burn on her right arm during a hysterectomy may proceed with her malpractice suit against the surgeon and the hospital where the incident took place, a Michigan appeals court has ruled.

Kimberly Rode awoke from hysterectomy surgery at Hurley Medical Center in Flint, Mich., in February 2005 with a bandage on her right forearm, according to court documents. When her husband removed the bandage, they found a "massive burn" there, according to court documents.

A wound care nurse described it as an "[o]pen blister, approx[imately] 2x1" when she examined Ms. Rode the next day. In her deposition, Ms. Rode said the nurse told her it was a "Bovie burn" and believed that the surgical staff failed to put a grounding pad on her leg during surgery to protect her from electrosurgical burns.

A few months later, Ms. Rode's attorney sent a notice of intent to sue the hospital, surgeon and other personnel, alleging that the patient's surgical burn was caused by "ordinary negligence" on the part of hospital staff.

Specifically, the notice stated that all the electrical equipment and instruments used during the procedure that could have caused burns or other wounds should have been properly attached and monitored "so as not to cause injuries on parts of the patient's body not associated with the surgical procedures of a hysterectomy," court documents show. The defendants criticized the notice for not specifying which standards of care were applicable to the surgeon and which were applicable to the hospital.

The defendants moved for summary disposition of the claim, arguing that the plaintiff's allegations fell under the category of medical malpractice, not ordinary negligence, and that the notice of intent and affidavidit of merit accompanying her complaint were insufficient. A lower court agreed and dismissed the suit, but earlier this month the state appeals court partly reversed that decision, allowing Ms. Rode to "amend her notice of intent" and "file a new complaint with a conforming affidavit of merit within the time remaining in the period of limitation."

Irene Tsikitas

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