When a sponge is left inside a patient after surgery, it's usually the hospital that is held liable in the ensuing malpractice lawsuit, since it's the hospital's OR staff that is responsible for counting sponges at closing. But surgeons aren't always absolved of wrongdoing when such errors occur. A review of a few similar cases shows physicians sharing liability with hospitals, or shouldering sole liability, for retained objects.

After R. Dexter Turnquest, MD, performed an exploratory laparotomy on Tina Renee Santee at Houston Northwest Medical Center in Texas, a sponge remained inside her abdomen. While Ms. Santee's lawsuit named the hospital, Dr. Turnquest and 2 nurses (who failed to perform an accurate closing count) as defendants, only the hospital was fined $42,000 in damages in 2001. (An undisclosed post-verdict settlement later reduced the amount to zero. Ms. Santee's attorney, Aaron E. Ray, did not return a request for comment.)

And in a similar case from 2010 that also took place in Texas, Molder vs. Barber and DeTar Hospital Navarro, a jury found the hospital liable for leaving a sponge after gallbladder surgery. The hospital was ordered to pay $4 million, while the surgeon settled for $49,000.

Hospital liability wasn't always the norm, though. According to attorney T. Griffin Vincent, who represented Houston Northwest in the Santee case, it used to be the surgeon, not the hospital, who'd routinely pay damages in lost sponge cases. The surgeon was legally considered the "captain of the ship" and OR staff were "borrowed servants" under his supervision, he says. In a 1977 case, Sparger vs. Worley Hospital, the Texas Supreme Court struck down the "captain of the ship" doctrine and held the hospital solely responsible, which initiated a precedent in the state.

Other states still operate under the "captain" doctrine. In a 2011 appeal of a retained sponge lawsuit, a Louisiana court ruled a surgeon and hospital equally liable. In that case, Brenna Davis v. Women and Children's Hospital Lake Charles, the hospital's attorney argued that a surgeon needs to conduct his own independent and complementary check at a procedure's end.

Even in Texas, the Sparger decision does not completely absolve a surgeon from responsibility, says attorney William J. Sharp, who represented Dr. Turnquest in the Santee case. The state's surgeons have still been named as lead defendants in retained object cases. In 2001, for example, a surgeon at M.D. Anderson Cancer Center in Houston was sued for leaving an 18-by-24 inch surgical towel in a patient's abdomen, which resulted in intestinal damage. While the patient dropped charges against M.D. Anderson, the surgeon, John Skibber, MD, settled the case for $400,000, according to the Houston Chronicle. "It was a very unfortunate mistake," said the surgeon's attorney, Frank Doyle. "Dr. Skibber was very apologetic."

Leigh Page