Appeals from Limestone Circuit Court. (CV-90-418). George T. Craig, TRIAL JUDGE.
Rehearing Denied May 19, 1995.
Cook, Hornsby, C. J., and Maddox, Shores, and Kennedy, JJ., concur.
The opinion of the court was delivered by: Cook
This is an appeal from a $500,000 judgment based on a jury verdict in favor of Sylvia Marie Coats on her medical malpractice claim against Dr. P.B. Ravi, M.D.; the Health Care Authority of Athens and Limestone County d/b/a Athens-Limestone Hospital; and Cathy Foxworthy and Wilma Vaughn, nurse employees of the hospital. We affirm.
In February 1989, Dr. Ravi operated on Sylvia Marie Coates at Athens-Limestone Hospital to remove an ovarian cyst. Following the surgery, she complained of constipation, and, later, of nausea and vomiting. Although she went to see Dr. Ravi several times between February 1989 and May 1990, the cause of her complaints was not correctly diagnosed. In June 1990, Coates was transported by ambulance to Athens-Limestone Hospital, where another doctor discovered "a large mass in her abdomen," appellee's brief, page 9, and performed surgery a few days later. The "mass" was found to be a lap pad that had been left inside Coates's body cavity during her previous surgery.
Coates thereafter filed a medical malpractice claim against Dr. Ravi, Athens-Limestone Hospital, and the two nurses who had assisted Dr. Ravi in her February 1989 surgery. At trial, she contended that Dr. Ravi and/or the two nurses had negligently and/or wantonly allowed the lap pad to be left inside her body cavity during the 1989 surgery. Although there was undisputed evidence that the lap pad, in fact, had been left in Coates's body during the surgery, there was a dispute at trial as to whether, as alleged by Dr. Ravi, there was a miscount by the two nurses or whether, as alleged by the nurses, Dr. Ravi had taken one of the lap pads for further use after the final count of the pads had been made. The jury returned a verdict against all defendants in the amount of $500,000. The trial court granted the hospital's motion to reduce the judgment against it to $100,000 pursuant to § 11-93-2, Ala. Code 1975, but refused to grant the motion to do likewise for the employees of the hospital, Cathy Foxworthy and Wilma Vaughn.
On appeal, the defendants contend that the trial court erred to reversal in giving the following jury charge:
"The standard of care to be applied in regard to sponges that are left inside a patient after surgery is that the physician who conducted the surgery bears the responsibility of removing the sponges from the patient's body and cannot by delegating the task of counting relieve himself from the liability of injury to the patient caused by leaving a sponge in the body. [The] fact that all physicians engaged in practice within the defendant's same general neighborhood routinely delegate the task of accounting for surgical sponges and relying on counts given them by other nurses or assistants, does not in itself relieve the physician of the liability for sponges left inside the patient's body."
R.T. at 613 (emphasis added). The jury charge was practically a direct quote from Ravi v. Williams, 536 So. 2d 1374, 1376 (Ala. 1988), wherein this Court stated:
"The standard of care to be applied in regard to sponges or other foreign objects that could be left inside the patient after surgery has been established by several recent cases.
"The physician bears the responsibility for removing sponges from the patient's body and cannot, by delegating the task of counting, relieve himself from liability for injury to a patient caused by leaving a sponge in the body. The fact that all physicians engaged in practice within the defendant's same general neighborhood routinely delegate the task of accounting for surgical sponges and rely on counts given them by nurses or other assistants does not relieve them of liability when a sponge is left inside a patient's body.
"The reason for this rule is stated in Powell v. Mullins, 479 So. 2d 1119 (Ala. 1985), as follows:
"'Unquestionably, it was the defendant's responsibility to remove all sponges from inside the plaintiff before closing the abdominal incision. This rule is stated generally at 61 Am.Jur.2d, Physicians and Surgeons, etc., § 258, p. 397 (1981):
"'" § 258.--Leaving foreign substance in wound.
"'"A surgeon undertaking to perform an operation requiring the placing of sponges in the incision does not complete his undertaking until the sponges are properly removed...."
"'Under our cases, a failure to remove sponges, needles, etc., which are placed inside the patient during the operation constitutes prima facie evidence of negligence. See Sellers v. Noah [, 209 Ala. 103, 95 So. 167 (1923),] and Parrish v. Spink, [284 Ala. 263, 224 So. 2d 621 (1969)]. The responsibility to remove the sponges was that of the doctor and not that of the nurses assisting him. He exercised exclusive control over the sponges from the time he placed them inside the plaintiff until he removed them. The mere fact that the defendant delegated the task of counting the sponges, once he had removed them from the patient, does not, in any way, relieve the defendant of his responsibility to remove them in the first instance. He had the duty and responsibility of ...