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There has been an interesting decision of the California Court of Appeals relating to whether a doctor is liable for a nurse’s mistake where the nurse leaves a sponge inside the body of a patient, unbeknownst to the doctor. Lawyers with our firm have had several prior cases involving infection and other complications that result from a sponge left inside a body that becomes infected, causing further surgery and complications, so the ruling is of interest to our firm, and ultimately affects the public as well. In the California case, the plaintiff had her right leg amputated after gangrene developed because a surgical sponge was left in her leg after a procedure to remove a blood clot.

The defendant doctor/physician claimed that he was not liable because doctors routinely rely on nurses to keep track of sponges and that he had relied on the sponge count of the nurse who assisted him in the surgery.
However, the Appeals Court decided that there is a presumption of negligence on the part of the surgeon when a sponge is left in a patient and therefore, the jury in the case should have been instructed on a legal doctrine called Res ipsa loquitur (meaning “the act speaks for itself”). The doctor’s lawyers argued that the physician did not have exclusive control over all aspects of the patient’s surgical procedure, but the court ruled that the doctor “was in the operating room with [plaintiff] at all pertinent times, performing the surgery which included closure of the surgical incision.”
The Appeals Court also ruled that doctors have a non-delegable duty to ensure that all sponges are removed from a patient, holding that “it is clear that a special relationship exists between a patient and a surgeon during surgery. The patient usually is unconscious rendering her helpless and vulnerable; the patient often has limited understanding of surgical procedures and no ability to control what is happening; and the patient has placed complete trust and confidence in the surgeon to exercise due care. We agree with [the plaintiff] that this special relationship provides a sufficient basis to maintain the surgeon’s non-delegable duty to remove foreign objects which have been placed in the patient’s body during surgery.” The court also ruled that the jury in the case should have been instructed on what is called the “captain of the ship” doctrine in the law, which “imposes liability on a surgeon under the doctrine of respondeat superior for the acts of those under the surgeon’s special supervision and control during the operation,” simply meaning that the doctor can be held liable for the staff and nursing members of the operational team.
Virginia and most states follow this “captain of the ship” doctrine in most circumstances similar to the outlined information above. Any time a foreign object or a sponge is left inside a patient’s body, it often raises a presumption of negligence on behalf of the surgeon. Often, a patient will not discover a foreign object that is left inside their body for months or years. In those cases, a lawyer must also examine whether the state has a “discovery rule” which affects when the statute of limitations runs. In other words, every state has a statute of limitations on how long a patient has to bring a suit over medical negligence. When that limitation of action period begins to run is a question in cases where a foreign is left inside the body. Usually, if the patient is not aware of the foreign object, the statute of limitations “discovery rule” allows the patient to sue under the statute of limitations from when they knew or should have known the foreign object existed.
If our firm can help you with a foreign object or surgical sponge retention situation, please call us for a free consultation and we can advise you on your legal rights.

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