The Supreme Court of Mississippi (“Mississippi Supreme Court”) held in its opinion filed on April 26, 2018 that the trial court erred by refusing to instruct the Mississippi medical malpractice jury as requested by the plaintiff in a case where the plaintiff alleged that the defendant surgeon was liable for the surgical sponge left in her body following abdominal surgery in 2004 that was not discovered until 2011, when the plaintiff suffered complications from the sponge.
The defendant surgeon testified at trial that after he removed the plaintiff’s gallbladder, he first visually inspected the surgical field for sponges and then felt around the area with his hands and relied upon the circulating nurse and the surgical technician to tell him verbally there was a correct sponge count, lap count, needle count, and instrument count.
The defendant surgeon admitted at trial that the sponge inadvertently had been left in the plaintiff’s abdomen during the 2004 operation and that the sponge was the cause of the plaintiff’s 2011 injury and complications, but he claimed that he did not deviate from the applicable standard of care, which he contended did not require him to count or keep track of the number of surgical sponges used in the operation, but which allowed him to rely on an accurate sponge count conducted by a nurse and scrub technician assisting in the 2004 procedure, both of whom were employed by the defendant hosptal.
The Mississippi medical malpractice jury reached a defense verdict, and the plaintiff appealed.
The Mississippi Supreme Court stated that more than a century ago, it had held that the unexplained leaving of a surgical apparatus in a patient’s body by a physician is negligence, which is the long-settled substantive law in Mississippi, and that the plaintiff was entitled to have the jury instructed accordingly based on the facts of the case.
The Mississippi Supreme Court held that the defendant surgeon had a nondelegable duty to remove all the sponges from the plaintiff’s abdomen and, based on the facts of the case, the defendant hospital had an independent (or concurrent) duty, apart from the defendant surgeon’s, to account for the sponges. Unexplained, the failure of either entity to carry out its respective duties is negligence. Although neither is negligent per se, a presumption of negligence is raised as to each, which both entities are required to rebut or explain.
Therefore, the Mississippi Supreme Court reversed the final judgment entered in favor of the defendants and remanded for a new trial with proper instructions to the jury consistent with its opinion.
Source Thompson v. Baptist Memorial Hospital-DeSoto, Inc., No. 2016-CA-00063-SCT.
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