Hospital & Surgeon Equally Responsible For Retained Surgical Sponge


In a somewhat odd case out of Louisiana, an appellate court has ruled that a hospital cannot have greater liability for a surgical sponge left in a patient than the surgeon. It is not this ruling which is odd. It is the fact that the plaintiff in the case filed the appeal, asking the court to assign the hospital a greater portion of the $50,000 judgment the trial court awarded. The trial court split the responsibility 50/50 between the surgeon and the hospital. But the plaintiff, for some strange reason, decided that spending thousands of dollars in legal fees appealing who should pay what percentage was worthwhile. The surgeon did not file or join the appeal to have the hospital pay a greater portion…and the hospital did not file an answer in the appeal against it. Unusual.

The plaintiff, Brenna Davis, originally brought this medical malpractice action against Dr. Richard Shimer and the Women and Children’s Hospital Lake Charles to recover damages sustained as a result of a sponge that was left in her body following a laparoscopic lap band surgery. Davis’ main complaint appeared to be a larger scar due to the need for a second surgery to remove the sponge. She filed her complaint asking for less than $50,000 which in La. puts the case for trial before a judge and not a jury.  $50,000 for a retained surgical sponge is a very reasonable low-ball request by a plaintiff, and the fact that this case ever even GOT to court is somewhat extraordinary. HERE is a case where the same type of mistake went for $260K. Most surgeon or hospital defendants would simply take pout their checkbook and put the matter to bed for a mere $50K (assuming they do not contest the fact that a sponge was left in the patient, and everyone agreed in this case that the sponge was in there). 

 However, the matter went to trial against the Hospital only after Davis settled with the surgeon for an undisclosed amount before the trial started. A one day bench trial was held with Dr. Shimer testifying that the standard of care is for the surgeon to remove any sponges inserted but not to stand over the shoulders of the nurses and technicians observing their sponge count. Davis did not contest this testimony and no expert witness testimony was presented by the plaintiff, which is also highly unusual. The trial court awarded Ms. Davis $50,000.00 in damages but apportioned fault equally between Dr. Shimer and the hospital, ordering each to pay $25,000. So Davis won and got exactly what she asked for. Why the matter did not simply end there is rather mystifying. Davis filed an appeal.

 In her appeal, Davis asserted that the trial court erred in its apportionment of fault, and that the hospital had greater liability since the surgeon relies on the sponge count of the hospital’s nurses in determining whether one is still in the patient prior to closing the incision. It is well established that under the doctrine of respondeat superior (vicarious liability) a hospital can be liable for the negligence of its employees. Odom v. State Dep’t of Health and Hosps., 733 So.2d 91  (La.App. 3 Cir. 3/24/99) ; Little v. Pou, 975 So.2d 666 (La.App. 2 Cir. 1/30/08), writ denied, 983 So.2d 920 (La. 6/6/08).     

The court also noted that the trial court correctly relied on established jurisprudence holding that a physician cannot delegate his obligation to count the sponges used in a surgical procedure in finding Dr. Shimer partially at fault in this matter. Grant v. Touro Infirmary, 223 So.2d 148 (La.1969), overruled on other grounds by Garlington v. Kingsley, 289 So.2d 88 (La.1974); Guilbeau v. St. Paul Fire and Marine Ins. Co., 325 So.2d 395 (La.App. 3 Cir. 1975); Chappetta v. Ciaravella, 311 So.2d 563 (La.App. 4 Cir 1975). 

Apparently Davis felt sorry for her surgeon and blamed the hospital’s operating room staff for the mistake, to the point that she was willing to spend her winnings making them pay a greater percentage of them. Assuming her lawyer got the customary 33% of the award, and her appeal cost a reasonable $10,000, the final total take for Davis is less than $25,000. She likely could have gotten that amount from the hospital by merely calling their attorney on the phone, herself.

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