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Romero v. Bellina9/25/2001
keeping track of the sponges and seeing to it that they were all removed before the incision was closed, then the surgeon cannot be held liable.
The present case is factually distinguishable from Roark. Unlike the surgeon in Roark, Dr. Bellina relied solely upon the sponge counts of the nurses. There is disputed evidence in the record as to whether Dr. Bellina performed an independent count of his own. Nevertheless, we hold that the current jurisprudence more accurately reflects the modern team approach to surgery, whereby the nurses' count is a remedial measure that does not discharge the surgeon's independent duty to insure that all sponges are removed before the incision is closed. Therefore, we find that the trial court was correct in holding that a surgeon has an independent non-delegable duty to insure that all foreign objects inserted into a patient during surgery are also removed from the patient before completion of the surgery. Additionally, we see no error in the trial court's apportionment of fault. Accordingly, the judgment of the trial court is hereby affirmed. Costs are to be paid by the Appellant.
AFFIRMED
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