When a Louisiana gastric banding patient sued her surgeon and hospital for leaving a sponge in her after surgery, the surgeon argued he was less culpable than the hospital, since it was the hospital OR staff's duty to count the sponges. However, a state court following prior case law assigned equal blame to the hospital and surgeon. Even with elaborate counts, it said, surgeons still need to conduct their own assessments, palpating the surgical site to look for sponges after surgery.

The sponge was found in patient Brenna Davis after the weight loss surgery, prompting her to sue both surgeon Richard Shimer, MD, and the Women and Children's Hospital Lake Charles, where the surgery took place. Ms. Davis settled with the surgeon for an undisclosed amount, but the trial court determined that both defendants were equally liable for the error and ordered them to pay $25,000 each in damages. The court explained that in such cases it is rare for one party to shoulder a larger amount, plus Dr. Shimer had a duty to check for sponges himself.

Ms. Davis appealed the decision, arguing the hospital should pay a higher proportion of the damages since it was primarily the OR staff's job to check for sponges. The surgeon was less at fault, she argued, because he was focusing on the procedure. But the appeals court upheld the trial court's decision in an Oct. 5 verdict. Ms. Davis' attorney, R. Scott Iles, has asked the Louisiana Supreme Court to hear the case, but he concedes only 5 percent of such requests are granted.

Dr. Shimer, who testified in the case, maintained it is the OR staff's job to keep track of sponges while the surgeon peers through a laparoscope. In this particular surgery, the surgical technician and the circulating nurse counted the number of sponges 3 times during the procedure, court records say. The surgical technician counted out loud while the nurse looked over his shoulder and wrote the number on a white board.

But even this supposedly fail-safe method failed to account for one sponge. After the surgery, Ms. Davis experienced an unexpected discharge. A CT scan revealed the outlines of the sponge and Dr. Shimer removed it. The chief claim of her suit was that her surgical scar from the gastric banding procedure was now a little bit longer.

Kurt S. Blankenship, the hospital's attorney, notes that surgeons should never completely rely on OR staff to make sure all sponges are out. Dr. Shimer, who placed and removed the sponges, committed the initial mistake by forgetting one of them, he says. A surgeon is obligated to make his own independent check after surgery, complementing the staff's sponge count. "The surgeon has a duty to look around and palpate and see if there is anything left in there," says Mr. Blankenship.

But Mr. Iles argues that with laparoscopic surgery, it is impossible for the surgeon to be absolutely sure that all sponges have been removed. In gastric banding surgery, he says, the incision is just 2 fingertips wide, any sponge left behind is the size of an egg yolk and an obese patient has extra layers of fat, requiring a deep incision that is hard to explore thoroughly.

While the court assumed checking for sponges is a standard of care for surgeons, it did not call expert witnesses to verify this, remarks Mr. Iles. Louisiana courts, he says, have failed to move beyond an older, pre-laparoscopic era, when incisions were much larger, the surgical area was could be easily seen and surgeons often did the sponge-counting themselves. "Medicine has evolved, and the law isn't evolving with it," Mr. Iles says.

Leigh Page