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Surgeon attempts to blame nurses for sponge left in mastectomy patient: case on point: Mitchell v. Baylor Univ. Med. Ctr., 2003 WL 21508493 S.W.3d -TX.

ISSUE: Time and again, we are confronted with the question of whether the ultimate responsibility for leaving sponges or other foreign objects in patients rests with surgeons. Time and again, physicians maintain that they rely upon nurses' counts as being correct. However, no matter how surgeons slice the issue, they cannot abrogate their ultimate responsibility for the sponge count. The buck stops with the surgeon. That was what the Texas courts were involved with in this case.

CASE FACTS: In 1996, Dr. Henry Byrd performed a mastectomy and breast reconstruction on Karen Mitchell. The procedure was performed at Baylor University Medical Center. Dr. Byrd was assisted by two nurses employed by Baylor and one nurse employed by his own professional association. After surgery, the patient experienced pain and problems at the surgical site. In 1999, the patient was referred to Dr. James Davidson, a surgeon. Dr. Davidson operated on the patient and removed what he visually identified as "surgical sponge." Karen Mitchell brought suit against Dr. Byrd, Baylor University Medical Center, and Dr. Byrd's professional association. She alleged that a sponge or some other foreign object was left in her body during her 1996 surgery. She asserted claims for medical negligence and negligence based on Res Ipsa Liquitur (RIL). The Medical Center and Dr. Byrd moved for summary judgment. They relied on the expert testimony of Dr. Jeffrey Barnard, who examined specimens removed by Dr. Davidson and stated that "there was no evidence of a sponge or any foreign body in the specimens." Dr. Byrd also argued that he was entitled to summary judgment because he did not exercise any right of "control" over the Medical Center's nurses' sponge count and "had a duty" to rely on the nurses' sponge count unless the count was not reconciled. The trial court granted summary judgment in favor of all defendants. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of Texas reversed the judgment of the lower court. The court held, inter alia, that the evidence raised a fact question as to whether there was a sponge or other foreign object left in the patient. The court noted that despite Dr. Barnard's expert testimony that the "there was no evidence of a sponge or any foreign body in the specimens ... [and] no fiber fragments were present in the specimens to suggest that the foreign body was present previously and deteriorated while in fixative." The court noted that the plaintiff responded that Dr. Davidson in his deposition stated that he removed a "foreign body" from the patient. He was asked, "Did you recognize it as a sponge when you removed it?" To which he responded, "I did."

LEGAL COMMENTARY: The court noted that the plaintiffs witness, Dr. Davidson, testified that he had been licensed as a medical doctor in Missouri and Kansas for ten to eleven years, had a general surgery private practice in Kansas City for eleven years, and also operated at several Kansas City area hospitals. He testified that he bad performed about 60 general surgeries a month for the previous four to five years of which about 70 percent were abdominal procedures. He had been certified by . the American Board of Surgery in 1991 and recertified in 1999. He stated that his opinion was based on his education, training, and experience as a medical doctor and surgeon. The court found that Dr. Davidson's testimony showed affirmatively that he was qualified by his education, training, and experience to testify to surgical procedures and materials, including identifying a surgical sponge. The court rejected the defendants' contention that since Dr. Davidson was not a pathologist he was not qualified to render such an opinion. The court noted that Dr. Davidson's testimony raised the fact issue as to whether the material that Dr. Davidson removed was, in fact, part of a surgical sponge. Accordingly, the court concluded that summary judgment against the plaintiff was improper on the grounds that there was a significant issue of fact as to whether or not a surgical sponge was left in the patient during the first surgery. The court further rejected the trial court's finding that Dr. Byrd had no right of control over the nurses' sponge count. The court noted that not only was there a question that Dr. Byrd was vicariously liable for the hospital's nurses' failure to count sponges, but there was also the issue of whether Dr. Byrd was also responsible for the negligence of the nurse employed by him who assisted in the operation and her negligence, if any.
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Title Annotation:Nursing Law Case of the Month
Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Date:Aug 1, 2003
Words:756
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