Medical studies have found that a shocking 1500 patients each year have medical devices (often sponges) left inside of them by doctors.
In torts, such cases are well-known and often gruesome. Most such cases represent obvious matters of malpractice, particularly since a simple sponge count can quickly identify a missing sponge in surgery. Ironically, one of the most egregious cases resulted in no liability due to the bar on military personnel suing for malpractice. The case was one of three cases that resulted in the infamous Feres Doctrine. In the case, doctors left a 30-inch towel in a patient that was later discovered. The towel had writing across it that said it was the property of the U.S. military.
Most of these cases are settled. Plaintiffs can also use res ipsa loquitur (“the thing speaks for itself”) to prove that this is the type of accident that does not normally occur but for negligence. However, as in the famous case of Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (Cal.1944), courts have complained of a certain “conspiracy of silence” among doctors and even nurses when confronted with malpractice. It is hard, however, to deny negligence when a sponge or scalpel is found in patient.
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