Who's responsible for ensuring no surgical sponges are left behind before the incision is closed? Who's liable for retained objects when this "never event" becomes a reality? Those questions remain unanswered in a Tennessee malpractice suit involving a surgeon and the widow of a man who suffered a retained sponge after abdominal surgery.

State appeals court Judge Holly M. Kirby reversed a trial court's previous summary judgment in favor of defendant Richard J. Geer, MD, who performed abdominal surgery on Clyde Deuel in July 2006, mistakenly leaving a surgical sponge inside the patient when he closed the incision. The patient's wife, Lorraine Deuel, sued Dr. Geer, his practice (The Surgical Clinic) and St. Thomas Hospital of Davidson County, Tenn., where her husband's surgery had been performed, arguing that they were negligent in preventing the retained sponge, court documents show. Mr. Deuel died of cancer several months before his wife filed the complaint; his sickness and death were unrelated to the retained sponge, which was removed in a second surgery several weeks after it was left in his abdomen.

St. Thomas Hospital settled with the plaintiff, admitting "legal fault for all the plaintiff's damages," according to court documents. Dr. Geer, however, continues to fight the allegations of malpractice and negligence in court, arguing that he was not solely responsible for accounting for all sponges, and that he had relied on the nurses performing the surgical count, which turned out to be erroneous.

Although he acknowledges that the sponge was left behind, court documents show that Dr. Geer contends it was "through no fault, negligence or error" on his part, because it is customary for surgeons to rely on the nurses' count and because the retained sponge was not exclusively his responsibility. Instead, the standard of care required him to focus on removing the patient's cancer and letting the circulating and scrub nurses account for the sponges, Dr. Geer argued, asking the trial court for summary judgment.

Using affidavits from the nurses involved in the case and a St. Louis-based colon surgeon, Ms. Deuel countered that Dr. Geer and the nurses shared responsibility for counting and preventing retained sponges. The nurses stated in their testimony that while it was their duty to perform the count, the surgeon was responsible for searching the operative site for any retained objects before closing.

The trial court ultimately granted Dr. Geer's request for summary judgment and denied Ms. Deuel's motion for partial summary judgment. But the case now heads back to court after Judge Kirby reversed the summary judgment granted to Dr. Geer and affirmed the trial court's denial of Ms. Deuel's motion on Aug. 16, determining that "a fact issue as to the physician's negligence remains for trial."

Irene Tsikitas

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