Sponge left in patient's leg: infection & amputation result.

NO SURGEON CAN DELEGATE RESPONSIBILITY FOR "THE COUNT" TO A NURSE. That was the crux of this case!

ON SEPTEMBER 11, 2002, 75-YEAR-OLD O'GREATA FIELDS WAS ADMITTED TO HENRY MAYO NEWHALL HOSPITAL. Fields went to the hospital after injuries in a fall. An angiogram revealed that arteries to Fields' right leg were completely blocked due to advanced vascular disease. Fields' left leg had previously been amputated above the knee due to a similar condition. On September 19, 2002, Dr. Frank Yusuf performed arterial bypass graft surgery to install a new blood vessel above the patient's right leg, inserting sponges to absorb and stem the flow of blood. Postoperative notes indicated that two sponge counts were conducted and that the counts were "correct." The next day, Dr. Yusuf performed a second surgery to remove a blood clot that had developed in the graft. Dr. Yusuf was assisted in this surgery by Arlene Dene, a registered nurse, and Marcial Camacho, a scrub technician. Dr. Yusuf had worked with both for several years. During the second surgery, Dr. Yusuf again inserted sponges to absorb and stein the flow of blood. Postoperative notes indicated that there was only one sponge count during this surgery, and that Dr. Yusuf was informed that the count was "correct." Unfortunately, a sponge was left in the patient's leg during the second surgery. During the patient's post-operative visits with Dr. Yusul, he noticed that the patient's right leg and calf were swollen. On September 28, 2002, Dr. Yusuf realized that the surgical wound was infected, and opened and cleaned the wound. On October 12, Dr. Yusuf determined that the wound was still infected, and on October 14, opened up the wound, and discovered a sponge deep behind the patient's right knee. He concluded that the sponge caused the infection, which had spread from the right knee up to the groin incision. Dr. Yusuf cleaned the entire wound, confirmed that a pulse still existed, closed the incision, and left two drains in the leg. Gangrene developed in the patient's leg. The patient's leg was amputated on October 18. After settling with the hospital, she pursued a claim for negligence against the Dr. Yusuf, and his professional corporation. After a jury trial, the jury found that Dr. Yusuf was not negligent. The patient appealed, contending that the trial court erred in refusing to instruct the jury regarding the doctrine of Res Ipsa Loquitur (RIL), as well as the doctrine regarding the non-delegable duty of a surgeon, and the "captain of the ship" doctrine.

THE COURT OF APPEAL OF CALIFORNIA HELD THAT THE TRIAL JUDGE HAD COMMITTED PREJUDICIAL ERROR AND ORDERED A NEW TRIAL FOR THE PLAINTIFF.

The court addressed each of the several issues, which the plaintiff raised on appeal. First, the court addressed the refusal of the trial judge to instruct the jury on the doctrine of RIL as the plaintiff requested. The court held that the case was one, in which the trial court should have granted the plaintiff's request to instruct the jury as to the doctrine of RIL. Second, the court addressed the refusal of the trial judge to instruct the jury on the nondelegable duty of a surgeon. Again, the court held that the case was one, in which the trial court should have granted the plaintiff's request to instruct the jury on the non-delegable duty of a surgeon for responsibility for the correctness of "the count." Third, the court addressed the issue of whether the trial court should have granted the plaintiff's request to instruct the jury on the captain of the ship doctrine, wherein the surgeon, under appropriate circumstances, bears responsibility for the negligence of those involved in a surgical procedure. Once again, the court held that the trial court should have granted the plaintiff's request to instruct the jury on the captain of the ship doctrine. Accordingly, the court concluded that the trial court had been guilty of prejudicial error, which merited the award of a new trial for the plaintiff.

THE COURT'S HOLDING THAT THE TRIAL COURT FAILED TO INSTRUCT THE JURY CORRECTLY DOES NOT NECESSARILY MEAN THAT THE PLAINTIFF WILL PREVAIL.

Accordingly, the awarding of the new trial to the plaintiff in this case means exactly that. The plaintiff will, in fact, get a new trial. However, in such a case, a new trial will ordinarily result in a trial judge instructing the jury in the trial in accordance with the holding of the appellate court. In this case, that would translate into the fact that the trial court, barring something unforeseen, would instruct the new jury in accordance with the ruling of the appellate court as to the applicability of the doctrines of RIL, the doctrine of the non-delegable duty of a surgeon for responsibility for the accuracy of "the count," and the captain of the ship doctrine. Editor's Note: It is apparent that, at the very least, the plaintiff would have had a much greater chance of prevailing in this case had the trial court instructed the jury correctly. Will another jury decide for the plaintiff? Fields v. Yusuf, No. B 179848 (Cal. App. Dist.2 11/21/2006)-CA