A New Jersey case decided in August 2018 had been brought by a plaintiff patient who had gone to the emergency room complaining of severe pain. The gynecologist performed a laparotomy to remove an ovarian cyst. Five years after the surgery, the plaintiff injured her back. A CAT scan showed a mass in her abdomen and exploratory surgery showed that the mass was a lap sponge from the laparotomy. She had to have her right ovary and fallopian tube removed. The patient sued the hospital, the surgeon who performed the laparotomy, the circulating nurse, and the scrub nurse.  A jury trial resulted in a verdict in favor of the defendant surgeon only. 

Per hospital policy, a laparotomy involved three distinct “counts” of instruments and lap pad sponges performed by the circulating and scrub nurses. An initial count was conducted to determine the number of instruments and sponges circulating in the operating room.  The second count occurred upon the initial closure of the peritoneal lining, wherein the nurses would count aloud for everyone in the operating room to hear.  The third and final count occurred when the surgeon was ready to close the skin.  

In this case, although a total of thirteen lap sponges were used during plaintiff’s surgery, the hash marks denoting the tally revealed a count of only twelve sponges retrieved, thus one was missing. However, the circulating nurse mistakenly wrote the number “13” next to the hash marks after adding them incorrectly. Neither nurse noticed the counting error and after verbally being advised that the count was correct, the gynecologist acknowledged the count by signing the count sheet. After surgery, the plaintiff developed a fever but a repeat CAT scan did not reveal the forgotten sponge. She was then discharged after her symptoms resolved.  

At trial, the circulating nurse admitted that she miscalculated the number of sponges on the count form but told the doctor that all sponges were accounted for. The gynecologist testified that he relied on the nurses’ counts and did not add up the tally on the count form before signing it. Plaintiff’s expert witness admitted that at the two hospitals where he worked, the nurses, not the surgeons, were responsible for the sponge count, but argued that the doctor’s mistake was in not reading the form in detail before he signed it. The doctor’s experts testified that his signature on the form simply acknowledged that the nurse told him the count was correct. The court found that there was no miscarriage of justice and the gynecologist’s experts established the applicable standard of care, and that the doctor is not required to confirm the nurses’ count. The doctor’s signature only meant that the doctor had received an oral confirmation from the nursing staff that the count was complete was correct.  

While this legal case revolves around individual responsibility, one approach to preventing similar surgical complications remains the use of a team approach. A surgical team must prepare and plan for the surgery, document problems (patient, procedure and equipment-related) in order to optimize the outcomes. The WHO has developed a Safe Surgery Checklist and manual (see ‘Learn More – Primary Sources below) to address these challenges and encourage the development of high-functioning teams. It is understood that each center will have its own particular approach and, therefore, the manual serves to provide ‘suggestions’ to promote safety and teamwork rather than rigid guidelines.   

Learn More – Primary Sources: 

Villapando v. Raritan Bay Medical Center, No. A-1483-16T3, Superior Court of New Jersey, Appellate Division

The Hidden Costs of Reconciling Surgical Sponge Counts

Retained surgical sponge: Medicolegal aspects

WHO surgical safety checklist and implementation manual

Related ObG Topics:

Evidence-Based Gynecologic Surgery Best Practices: The AHRQ Safety Program

ACOG Guidance on Preventing Gynecologic Post-Procedure Infection

Can a Catheter Fragment Turn into a Retained Foreign Object?