9 Investigates: Surgical mistakes kept secret

CHARLOTTE, N.C. — Mistakes at hospitals happen more often than the public knows, and health care systems pay millions of dollars to keep it that way. They're called "secret settlements" or "confidentiality agreements," and they prohibit patients from telling anyone about hospital wrongdoing.
In a Channel 9 investigation, anchor Sarah Rosario learned what's being done to limit secret agreements and also spoke with an Allegany County woman who said hospital negligence ruined her life.

Debbie's Story

"There was so much anger. So much hurt from being deceived," Debbie Pennington said.
Pennington is finally speaking out and calling for changes 20 years after a surgical sponge was left in her body during a partial hysterectomy at Hugh Chatham Hospital in Elkin, North Carolina.
"It was folded up to the size of a pack of cigarettes," she said.
Bound by a confidentiality agreement, Pennington didn't tell anyone about the hospital settlement that she accepted, or the years of pain and additional surgeries that she needed to fix the mistake. After the procedure, Pennington said she knew something was wrong but said doctors couldn't pinpoint the problem.

"I went to the doctor and told him, 'Something is wrong. Either I'm dying or something has happened,'" she said.
Six months after the procedure, another doctor took X-rays and found a surgical sponge near Pennington's stomach. Pennington was told she had an abdominal mass and was sent back to her original physician for emergency surgery.
When she got to the hospital, she said her original physician never told her it was a sponge.
"No, he never (did). When he put me to sleep, l signed the papers saying it was a mass," Pennington said.
The case went to trial in Iredell County, but the jury was deadlocked 6-6. After they learned about Pennington's previous surgery at Iredell Memorial, jurors couldn't come to an agreement on who left the sponge inside Pennington.
While Pennington can't talk about the settlement that she accepted, she said she can no longer keep quiet. She's calling for changes to laws that allow confidentiality agreements -- laws that she says protect hospitals and keep the public from ever knowing about life-threatening mistakes.
"It's not fair to the public," Pennington said.

What's Being Done to Change the Rules

Charlotte lawyer Charles Monnett said cases like Pennington's are hard to fight in court because hospitals almost always offer a settlement and demand confidentiality.
"As long as doctors have special protections under the law, there's no incentive for them to take the steps necessary to really get a grip on this problem and fix it," Monnett said.
Monnett said an overhaul of state medical malpractice laws in 2011 gave health care providers even more protection. It not only capped payouts for non-economic damages like pain and suffering at $500,000, but also made it even more challenging for patients to sue and for lawyers to fight cases like Pennington's unless there's a death or a near-death experience.
"There's never going to be an effective patient lobby that can stand up against the lobby of the entire health care industry," Monnett said.
Durham lawyer and Sen. Floyd McKissick Jr. is hoping to change that. He's working on a new bill that would require laws similar to those already in place in South Carolina, California and Florida.
Authorities there have already banned or put limits on confidentiality agreements in federal courts and other state regulatory matters. McKissick's plan would leave it up to a judge to decide.
"Transparency is essential. It is critical, and we need a judge to make the determination that if something were to be kept secret, private or confidential that there's not going to be that great of a risk to others," McKissick said.
Hospital safety advocate and nonprofit watchdog The Leapfrog Group reports that foreign objects left in patients after surgery is one of the most common mistakes, saying it happens in one out of every 5,500 surgeries.
Last August, the federal government stopped publicly reporting some avoidable errors that hospitals make, including when foreign objects are left in patients' bodies. A month later, it reversed the decision, but Pennington said it shouldn't have happened in the first place. She said patients were denied life-saving information to which she wished she had access 20 years ago.
"I wasn't given that right," Pennington said.
Now she's hoping that McKissick's plan is approved. She wants hospitals to be held accountable for preventable mistakes that she and others have been forced to keep secret for years.
"It shouldn't have to be hidden, because you're walking proof that it did happen," she said.
Channel 9 will be following McKissick's bill once it is introduced in the Legislature.
While this case didn't happen in Charlotte, Channel 9 checked to see what type of safety scores hospital systems in our area have been given. Carolinas Medical Center received a "C" rating and Novant Health Presbyterian received a "B" rating, while both Piedmont Medical Center and CaroMont Medical Center received "A "ratings.

To see the ratings for hospitals in your area, CLICK HERE.

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