Q. Please comment on the legal implications of the sponge count for the OR nurse. A. As a result of infection, delayed recovery, and even death, patients or families have brought legal actions against surgeons and nurses for negligence when a sponge was left inside the patient. The sponge count provides a method of safeguarding against the legal liability that may result from an overlooked sponge. Hence, the sponge count has become a common practice in most hospitals. Common practices are recognized in courts of law as the acceptable standards and sanctions on which legal liability may be established or denied. Therefore, if the majority of hospitals in a given community require a sponge count, this practice will be recognized as the common law of the community. It behooves every hospital in the community to establish the same or similar written policy regarding sponge counts. Likewise, it behooves every surgeon and OR nurse to adhere to the hospital policy or standard practice within the community. Even though a sponge count is the recognized common law, the hospital is not legally forced to establish a policy that conforms with the standard practice of the community. However, a hospital which either does not have a policy, or has a contrary policy, may be placing its nursing personnel in legal jeopardy. For example, if a hospital has a policy which specifically excludes a sponge count by a nurse, believing the surgeons alone are responsible for everything connected with operations, including seeing that no foreign body is left in a patient, the nurse may still be held liable if a sponge is left in a patient, when a sponge count is the standard practice in her community. Customarily, the attorney representing the patient will find out, from the medical chart or other sources, the names of the persons participating in the operation. All these persons may then be included as defendants in the lawsuit. A deposition will be taken before the trial to question personnel, who were present in the operating room, as to the facts surrounding the incident. The nurse may or may not be sued for negligence, depending on the circumstances and thinking of the attorney. Both the nurse and the surgeon are duty bound to use all reasonable efforts to make certain that no sponge or other foreign body remains in the patient after operation. When an OR nurse has the responsibility for taking a sponge count, and a sponge is left in a patient, the nurse, the hospital and the surgeon can all be held negligent and liable. The nurse is held for failure to apply reasonable and
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