Differences in court opinions concerning liability for foreign objects left inside of patients during operations.

The liability of foreign objects left inside of patients during operations depends on court opinions on whether the sole responsibility of the operating instruments are for the job responsibility of either the operating room personnel or the physicians or both. The responsibility of accounting for sponges, instruments and other foreign matters may lie with both the surgeon and nurse and, in some instances, the operating room technician.  Foreign materials negligently left in a patient’s body constitute an administrative act. In the case of Hospital in Ross vs. Chatham County Hospital Authority, it was a properly denied summary dismissal of an action, which a patient sought to recover damages for injuries suffered when a surgical instrument was left in the patient’s abdomen, during surgery. The incident was as a result of lack of instrument and sponge count after surgery. The borrowed servant doctrine did not protect the hospital liability from the negligence of its nurses. This is because the doctrine applies only to acts involving professional skill and judgment.  A Standard Operating Procedure (SOP) for instrument and sponge count should be adhered in the operating room at all time. Again, in the case of decedent’s estate in Holger v. Irish, after the jury decided in favor of the surgeon, the decedent’s estate appealed and the Oregon Supreme court held that the surgeon was not vicariously liable, as a matter of law, for the negligence of the operating room personnel. This is because he is not the employer of the operating room staff.