Kreisman Law Offices Professional Corporation
A recent Illinois Appellate Court granted a surgeon’s motion for summary judgment in a medical malpractice lawsuit when it found that the surgeon was not responsible for a sponge that was left in a patient after performing a surgery. Two months after the procedure was performed the patient underwent an additional procedure, at which time the surgical sponge was discovered. Forsberg v. Edward Hospital and Health Services, No. 2-08-0243 (April 8).
The patient sued both the surgeon individually and the hospital where the procedure was performed. However, after the hospital settled out of court the surgeon requested summary judgment based on his opinion that he had satisfied the standard of care by relying on information he received from the nurses. After a surgical procedure the circulating nurse and scrub nurse are responsible for accounting for all surgical materials. In this case they had told the surgeon that the sponges were all accounted for, at which point the surgeon proceeded to stitch the patient up.
Typically the plaintiff in an Illinois medical malpractice case has the burden to prove that the defendant doctor breached the standard of care, which is usually done by providing expert testimony. However, in Illinois expert testimony is not required to establish the relevant standard of care “where the common knowledge of laymen is sufficient to recognize or infer negligence.” Walski v. Tiesenga, 72 Ill.2d 249 (1978). In the present case the court held that medical expert testimony was not necessary because it is common knowledge that sponges should not be left behind in a patient after a surgery.
However, the notion that the surgeon was careless is a rebuttable presumption. Yet there was no evidence presented by the plaintiff to counter the doctor’s testimony that he satisfied the standard of care. “Any inference of negligence based on the bare fact that a sponge was left inside plaintiff’s surgical wound was negated by unrefuted evidence,” said Justice Jack O’Malley, basically asserting that because plaintiff did not present any evidence as to how the surgeon was negligent they lost the opportunity to assert his negligence.
Judge O’Malley further stated, that based “on this evidence, the ‘captain of the ship’ doctrine does not create a genuine issue of material fact.” The law in Illinois as to “captain of the ship” doctrine is that if a surgeon retains supervision or control over other persons participating in an operation, then he or she should be required to exercise and control the procedure with reasonable care. However, typically Illinois courts have held that a surgeon may not be liable for the nursing staff’s negligence without proof that the surgeon was independently negligent in relying on the nursing staff. Therefore, this doctrine does not apply in the present case.
Kreisman Law Offices has been handling Cook County medical malpractice cases for over 30 years, serving areas in and around Chicago including Naperville, Oak Park, Schaumburg, and Blue Island.