The Legal Examiner Mark The Legal Examiner Mark The Legal Examiner Mark search twitter facebook feed linkedin instagram google-plus avvo phone envelope checkmark mail-reply spinner error close
Skip to main content

Here is a case where a sloppy surgeon was stupid enough to leave a surgical sponge inside a JUDGE! And, of course, the judge (a 67-year old Palm Beach judge named Nelson Bailey) has had a "come to God" moment and decided that since this blatant act of physician and hospital neglect happened to him, while this is "not his area of the law", the idea of medical malpractice caps is not a good idea. Tort reform is never a good idea when you are the plaintiff; being crapped on by an insurance company and the legislature at the same time is not fun, just ask Trent Lott. Here’s what the judge had to say:

“I don’t know what all these caps are. That is not my area of the law… But what I would like to see is when you have malpractice per se, something this egregious, the damages should be between the parties, a judge and jury without the state legislature dictating limits.”

Amen, judge. But not only for cases of "malpractice per se"; damages should always be decided between the parties, a judge and a jury, within the civil justice system, without legislative interference into a branch of government that legislators know little or nothing about. What happened to you could (should?) happen to every State or federal legislator who has ever taken money from pro-business lobbies and then voted for tort reform or damage caps in personal injury/medical malpractice cases. I wonder how they would feel about tort reform if they were the victims?

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.


  1. Gravatar for james O'Hare RPLU AIC AIS
    james O'Hare RPLU AIC AIS

    No excuse for the retained sponge, a simple post op xray should have picked it up.

    To be fair regarding connecting this judges story to the cap:

    Soaking wet- What is a retained sponge worth? Would it be $500k in Florida?

    regards Jim

  2. Jim: Nice to hear from you again. We've had this conversation and debate. No other genre of litigation places a 'damage cap' on litgation outcome. If company A sues company B and claims intangible patent or "future sales" losses, there is no cap. It is up to the plaintiff to demonstrate to the trier of fact how to quantify those intangible damages and neither the Chamber nor the tort reform crowd complains about business-to-business multi-million intangible damages. When BP pollutes the Gulf and innocent citizens are damaged, the law says "cap". The same thing with certain genres of injury cases. Why is it that ordinary citizens are always the ones sacrificing on the alter of business and insurance interests? How do artificial caps assist safety interests? What "pain and suffering" is worth should be in the sound discretion of the jury, with an experienced judge determining whether to remit or add. The legislature has no business in the jury room or the court room. That has, consistently, been my view. I know that you feel otherwise; I understand that you think that there should be some arbitrary number where a jury crosses the line from reasonable to unreasonable; I, simply, disagree, but, respect, absolutely, your right to feel otherwise.

  3. Gravatar for David Palmer

    Dear Editors,

    Judge Nelson Bailey has become an advocate for patient safety improvements – hoping that others don’t suffer as he did from a retained surgical sponge. These accidents don’t just happen to judges – 1 in 1,500 intra-abdominal cases results in a left-behind sponge, which can lead to complications such as infection or even death, as well as preventable and costly follow-on care. This works out to between 5-10 surgical cases each day in the U.S.

    In this day and age, it only makes sense that for certain repetitive manual tasks such as counting, we should leverage effortless technology to eliminate human error. Hospitals and physicians should know that RFID technology is already preventing sponges from being left behind in patients at leading institutions. Systems that both count and detect sponges provide the most complete and effective technology available, accounting for the facts that many factors can lead to a missing sponge, and that time is of the essence during surgery. As the judge himself has pointed out, in addition to reducing unnecessary injury, technology could also pay for itself in its potential to reduce lawsuits. We have confidence that decision-makers will take the time to consider the straight talk and clear logic of Judge (and patient advocate) Nelson Bailey.

    David Palmer

    ClearCount Medical Solutions

    Pittsburgh, PA

Comments are closed.

Of Interest