HOSPITAL, NOT SURGEON, LIABLE FOR SPONGE LEFT INSIDE ILLINOIS MEDICAL

MALPRACTICE PATIENT
June 11, 2009

A recent Illinois appellate court case, Forsberg v. Edward Hospital, No. 2-08-0243 (Ill. App. Ct.
2d Dist April 8, 2009), highlights the importance of supporting a medical malpractice case with
medical expert testimony, even where the alleged negligence is obvious.

In Forsberg, the plaintiff sued defendants Edward Hospital and surgeon David Piazza, M.D., for
medical malpractice after a sponge was left inside her following a lumpectomy. The plaintiff
settled her case against Edward Hospital, and proceeded against the remaining defendant
surgeon.

The defendant moved for summary judgment arguing the following: (1) the plaintiff’s Section 2-
622 affidavit from a medical expert was deficient, and therefore the plaintiff provided no expert
evidence that the defendant breached the standard of care; (2) the “common knowledge”
exception to the rule requiring expert testimony did not apply; and (3) the defendant cannot be
held liable under the “captain of the ship theory.” The trial court granted the defendant
summary judgment, and the Illinois appellate court affirmed.

First, the appellate court held the Section 2-622 affidavit failed to comply with Supreme Court
Rule 191(a), which sets forth the standards for affidavits in summary judgment
proceedings. Rule 191(a) requires that all documents relied on by the affiant must be attached to
an affidavit in support of and in opposition to a motion for summary judgment. Here, the
plaintiff’s 2-622 affidavit from Dr. Drew, a general surgeon, stated that “according to the
records of plaintiff’s care, a sponge was left in her surgical wound . . . which was error on the
part of [the defendant].” However, the plaintiff did not attach any of those records. Therefore,
the appellate court found the affidavit “inadmissible in opposition to defendant’s motion for
summary judgment.” Also of note to Illinois medical malpractice lawyer, the appellate court
found that although an affidavit must be “sworn,” Rule 191(a) “does not require an affidavit to
be notarized.”

Second, the appellate court agreed with the defendant that the “common knowledge” doctrine
cannot be invoked by the plaintiff to raise a genuine factual issue of whether the defendant
breached the standard of care. Under the “common knowledge” doctrine, expert testimony is not
required in a medical malpractice case to establish the standard of care “where the common
knowledge of laymen is sufficient to recognize or infer negligence.” Citing Walski v. Tiesenga,
72 Ill. 2d 249, 257 (1978).

The appellate court acknowledged that the common knowledge exception has been applied to the
act of leaving a sponge inside a surgical patient. See, e.g., Piacentini v. Bonnefil, 69 Ill. App. 2d
433 (1966). However, those cases held that the fact that a sponge was left inside a patient
established “prima facie” evidence of malpractice, but malpractice “per se.” Instead, there is a
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“rebuttable presumption” of negligence, which may be rebutted by evidence that the mistake was
not caused by carelessness on the doctor’s part. See, e.g., Olander v. Johnson, 258 Ill. App. 89,
99 (1930) (holding a doctor was not liable for leaving a sponge inside a patient because the
doctor “reasonably relied on the nursing staff, including the chief nurse’s assurance that the
sponge count was correct”).

Here, the appellate court found that “any inference of negligence based on the bare fact that a
sponge was left inside plaintiff’s surgical wound was negated by unrefuted
evidence.” Specifically, the surgeon testified that he “reasonably relied on the standard sponge-
count procedure, including the assurance of the circulating nurse and the scrub nurse that the
final sponge count was correct.” Accordingly, the appellate court held that the “common
knowledge” doctrine did not apply.

Third, the appellate court held that the surgeon cannot be found liable based on the “captain of
the ship” doctrine. Under the “captain of the ship” doctrine, a surgeon may be held liable for the
negligence of an assisting nurse not in his employ if the negligent acts are done “while the nurse
is under the surgeon’s direct control or supervision.” Foster v. Englewood Hospital Ass’n, 19 Ill.
App. 3d 1055, 1059 (1974). In other words, if a surgeon retains control or supervision over other
persons participating in an operation, “he should be required to exercise that control with
reasonable care.” Foster, 19 Ill. App. 3d at 1061.

The appellate court interpreted Foster to mean that “if defendant is not liable for his own
negligence, then he is not vicariously liable for the nursing staff’s negligence.” In other words, a
surgeon cannot be held liable for the nursing staff’s negligence “without proof that the surgeon
was independently negligent in relying on the nursing staff.” The appellate court found that,
whereas in Foster, the surgeon failed to supervise the nurse with reasonable care, here “the
evidence provides no basis to find such negligence.”

Therefore, the Illinois appellate court rejected the plaintiff’s arguments, and affirmed summary
judgment in favor of the defendant surgeon.