Forsberg v. Edward Hospital & Health Services

906 N.E.2d 729, 389 Ill. App. 3d 434, 329 Ill. Dec. 531, 2009 Ill. App. LEXIS 215
CourtAppellate Court of Illinois
DecidedApril 8, 2009
Docket2-08-0243
StatusPublished
Cited by14 cases

This text of 906 N.E.2d 729 (Forsberg v. Edward Hospital & Health Services) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forsberg v. Edward Hospital & Health Services, 906 N.E.2d 729, 389 Ill. App. 3d 434, 329 Ill. Dec. 531, 2009 Ill. App. LEXIS 215 (Ill. Ct. App. 2009).

Opinion

JUSTICE O’MALLEY

delivered the opinion of the court:

Plaintiff, Margaret Forsberg, sued defendants, Edward Hospital and Health Services (Edward Hospital) and David J. Piazza, M.D. (defendant), for medical malpractice. The basis of plaintiffs claim was that, after an operation that defendant performed, a sponge was left inside a surgical wound. After plaintiff settled with Edward Hospital, the trial court granted defendant summary judgment (see 735 ILCS 5/2 — 1005(c) (West 2006)) and denied plaintiffs motion to reconsider. Plaintiff appeals. We affirm.

Plaintiff’s complaint alleged that, on June 4, 2004, plaintiff underwent a lumpectomy on her left breast. Defendant performed the operation, and Edward Hospital provided the operating room services, personnel, and supplies. During the operation, a surgical sponge was inserted into the surgical wound. The complaint asserted that Edward Hospital’s agents were negligent for (1) failing to perform a proper sponge count before or after the operation; (2) failing to be aware of the sponges that defendant was using during the operation; (3) failing to inform defendant of the missing sponge or the inaccuracy of the sponge counts; and (4) failing to use certain devices to detect sponges. The complaint also alleged that defendant was negligent for (1) failing to account for the sponges that he used in the operation; (2) not properly directing operating room personnel to remove sponges before closing the surgical wound; (3) not properly observing the surgical field for the presence of sponges; (4) failing to inquire before closure whether the sponge counts were correct; and (5) not properly using certain devices to detect sponges. According to the complaint, as a result of the alleged negligence, a sponge was left inside plaintiff’s surgical wound, causing it to heal improperly, which in turn required more surgical care. The complaint did not attach a physician’s report stating that the action had a meritorious basis (see 735 ILCS 5/2— 622(a)(1) (West 2006)).

Defendant moved for summary judgment, arguing as follows. Ordinarily, to prevail in a medical malpractice suit, a plaintiff must introduce expert medical opinion. However, no expert had provided any evidence that defendant had breached the standard of care. A defendant may submit his own expert opinion, and defendant’s deposition, which included his opinion, established that he had acted with due care, because the circulating nurse was responsible for all sponge counts before and after the operation. Also, defendant could not be liable under the “captain of the ship theory,” which had been limited by Foster v. Englewood Hospital Ass’n, 19 Ill. App. 3d 1055 (1974).

In his deposition, taken September 6, 2007, defendant testified as follows. In performing the lumpectomy, he made two incisions: one near the armpit (axillary incision) and one into the breast. During the surgery, sponges were used, and a nurse kept track of them. At some point near the end of the procedure, the nurse told defendant that all of the sponges had been collected, and he began to close. At that time, he had no indication that any sponges were uncollected.

Defendant testified that, after the operation, he saw plaintiff on several follow-up visits. On July 27, 2004, he concluded that the axillary incision wound was not improving. He scheduled July 30, 2004, for an excision of what he believed was a fistula (a connection of a lymph channel to the skin). On July 27, 2004, he had no idea that a foreign object was still inside the axillary incision area. While operating on July 30, 2004, defendant discovered the sponge there and removed it.

Defendant explained that even a simple operation may require 20 or 30 sponges. The sponge involved here was four-by-four inches or smaller. Sometimes, a sponge absorbs fluids and becomes “camouflaged” within the wound, and it may also get “wadded up, very small.”

Defendant identified a document as the circulating nurse’s notes of the lumpectomy. The document included sponge counts. The nurse was not his employee. Defendant explained that a circulating nurse “is responsible for the patient from the preop holding area all the way through the operating room to the recovery room.” Asked how personnel keep track of the sponges used in an operation, he testified as follows. After nurses open a packet of sponges, they count them. As each sponge is used in the operation and then removed, the “scrub nurse” collects it. The circulating nurse receives the used sponges and keeps counts of the sponges that were delivered and those that were received back. The delivery count is verified by both the scrub nurse and the circulating nurse, and the circulating nurse is responsible for ensuring that all sponges have been collected. The sponge count “at the end of the case *** is conducted by the circulating nurse and the scrub tech with the circulating nurse being responsible for that count.” A final sponge count is always performed before the surgeon leaves the room. Because defendant’s practice was never to leave the room until he was sure that the circulating nurse had told him that the sponge count was correct, he assumed that there had been no miscommunication in that regard on June 4, 2004. Defendant opined that he had complied with the standard of care.

Edward Hospital settled with plaintiff and was dismissed. Plaintiff responded to defendant’s summary judgment motion, noting that she had now filed a section 2 — 622 physician’s report. The one-page report was dated September 26, 2008. In the report, Dr. Michael Drew, a general surgeon, stated that, according to the records of plaintiff’s care, a sponge was left in her surgical wound. “[I]n all medical probability,” the sponge had been used in the original procedure. Dr. Drew opined that leaving the sponge in the wound was “error on the part of the members of the surgical team, including [defendant] and the nursing staff present in the operating suite” and breached the standard of care.

In arguments, plaintiff contended that she did not need expert testimony to prove negligence, as it was common knowledge that leaving a sponge inside a surgical patient’s body is a breach of the standard of care. She argued further that, even if a nurse had been the only negligent actor, defendant was vicariously liable under Foster because the nurse was subject to his control and supervision. Defendant responded that the section 2 — 622 report could not be used to defeat summary judgment; that the “common knowledge” doctrine did not apply; that the “captain of the ship” doctrine noted in Foster is not the law in Illinois; and that the nurses who performed the sponge counts did not do so under his direct control. Plaintiff replied that the “physician affidavit” was evidence that defendant had breached the standard of care. The following colloquy ensued:

“THE COURT: However, that report was not an affidavit.
MR. PANDYA [plaintiffs attorney]: My apologizes [sic].
THE COURT: Do you have anything that shows it was an affidavit, because I looked at the original image.
MR. PANDYA: I do not.
THE COURT: And it’s not an affidavit.

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Cite This Page — Counsel Stack

Bluebook (online)
906 N.E.2d 729, 389 Ill. App. 3d 434, 329 Ill. Dec. 531, 2009 Ill. App. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forsberg-v-edward-hospital-health-services-illappct-2009.