Who is responsible for sponge and instrument count?

Retained surgical sponges and instruments are a common occurrence in surgical practice despite all the count policies, electronic counting and adjunct methods used in the operation theater. When discovered years later, they raise many medicolegal questions.

Lawsuits are brought forth by patients against the operating surgeons and medical facilities and the question about who is responsible for sponge and instrument count is often debated in the court of law. The captain of the ship or the surgeon is no longer responsible for a correct sponge or instrument count at the end of surgery and members of the entire operating team can be held liable in litigation for retained foreign bodies.

In August 2005, Maurine Villapando went to the emergency room at Raritan Bay Medical Center (Raritan Bay), New Jersey complaining of severe abdominal pain on her right side. Physical examinations and imaging studies revealed an ovarian cyst. The attending obstetrician/gynecologist (OB/GYN) surgeon Dr. Nath, performed a laparotomy, an open incision directly into the abdomen, to remove the cyst.

As per the hospital policies, a laparotomy involved three distinct "counts" of instruments and lap pad sponges performed by the nurses, who, in this case, were defendants Virginia Ko Chua, the circulating nurse, and Liza Abundo, the scrub nurse.

The initial count was done before the start of surgery, the second count occurred during 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.

After the third count, the nurses would verbally inform the surgeon that the count is correct, puts a hash mark against each item on the “count-sheet” to ensure that nothing is missing. At the end of the procedure, the circulating nurse would sign the sheet indicating that the surgeon was verbally notified of the final count status, and the surgeon would acknowledge the count report by signing the count sheet.

In this case, the circulating nurse committed an error while adding the hash marks on the “count-sheet” and reported that all the 13 sponges were accounted for. 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 and continued to have pain, but a repeat CAT scan did not reveal the forgotten sponge. She was then discharged after her symptoms resolved. 

Approximately after 5 years, the plaintiff had an X-ray done for back pain when the missing sponge was found. The sponge has formed a large mass with a lot of scar tissue that involved the right fallopian tube and ovary. She had to undergo a right-sided salpingo-oophorectomy and was told that if she wishes to have children in the future, she would require some assisted reproductive technique.

On February 20, 2013, the plaintiff sued the hospital, the surgeon who performed the laparotomy, the circulating nurse, and the scrub nurse. She eventually settled with all the other defendants except the OB/GYN surgeon, Dr. Nath who proceeded to trial.

At trial, the gynecologist testified that he relied on the nurses' count and didn’t himself do the math.  The plaintiff expert witness, an OB/GYN himself admitted that at the other two hospitals where he has worked, it was the nurses, not the surgeons, who 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.

Two expert witnesses from the defending gynecologist side testified that the doctor simply signed the form to acknowledge that the nurse told him the count was correct and the surgeon is not required to double-check the nurses tally.

At the end of the trial, the jury did not find Dr. Nath guilty of medical negligence, and according to the established standard of care, 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 revolved around the individual responsibility of the operating team, it requires teamwork to prevent such type of complications. Whether cases of retained surgical sponges occur because of negligence, mistake or merely human error is irrelevant in the overall picture. What is relevant is that healthcare providers can now potentially eliminate the risk entirely using new computer-assisted advanced technologies.

SITUATE™ DETECTION SYSTEM X

Medtronic’s Situate™ Detection System utilizes low-frequency radio waves to detect sensors embedded in the sponges. Another method, Stryker’s SurgiCount Safety-Sponge System®, utilizes a technology that tracks each medical sponge used with a unique identifier. In the case of SurgiCount, the manufacturer offers a $5 million indemnification guarantee to hospitals that implement it.

In the end, surgeons being the captain of the ship, face increased liability, ultimately assuming responsibility for any negligence committed by those working under their directions. Hence, it is incumbent upon the surgeon to do everything in his capacity to protect the health of patients and protect himself or herself—as well as his or her support team—from potential medical malpractice claims.

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

Ob/Gyn Updated Facebook page