M. MICHAEL KINARD, Judge.
This is a medical malpractice case. Appellant Marc Rogers, M.D., brings this appeal from the order of the Garland County Circuit Court denying his motion for a new trial. On appeal, Rogers argues that the circuit court erred in granting partial summary judgment in favor of appellee Alan Sargent on the issue of liability because a jury question was presented. We agree and reverse and remand for a new trial.
Dr. Rogers performed gallbladder surgery on Sargent on November 13, 2001. At the conclusion of the surgery, the nurses assisting Dr. Rogers reported that the sponge-and-instrument count was correct. Almost two years later, Sargent returned to Dr. Rogers complaining of abdominal pain. Rogers performed a second surgery and removed a surgical sponge from Sargent's abdomen that was placed there during the 2001 surgery.
Sargent brought suit against Rogers, Dr. Gary Meek, and the nurses that assisted Dr. Rogers during the surgery alleging medical malpractice.
Prior to trial, Sargent filed a Motion for Partial Summary Judgment, alleging that Rogers was liable as a matter of law. In his brief in support of the motion, Sargent relied upon the supreme court's decision in Spears v. McKinnon, 168 Ark. 357, 270 S.W. 524 (1925), which contains the following language:
168 Ark. at 363, 270 S.W. at 526 (quoting 21 R. C. L. Physicians and Surgeons § 33 at 388 (1918)).
In opposition to the motion, Dr. Rogers submitted the affidavit of Dr. Kelly Mahone, a surgeon familiar with the standard of care of a general surgeon practicing in Hot Springs or a similar locality. Dr. Mahone opined that there was no evidence that Dr. Rogers deviated from the applicable standard of care in relying on multiple "correct" sponge counts from the nurses assisting him during the surgery. Mahone also stated that Dr. Rogers would not have been required to search for foreign objects in Sargent's abdominal cavity unless there was an incorrect sponge count or Sargent experienced postoperative symptoms or complications suggesting the presence of a foreign object, which, according to Mahone's review of Sargent's medical records, did not occur. Further, the sponge was located in a relatively inaccessible region of Sargent's abdomen and, according to Mahone, would likely not have been visible to Dr. Rogers as he performed the surgery.
The circuit court ruled from the bench and granted the motion for partial summary judgment. Dr. Rogers filed a motion to reconsider, asserting that the supreme court in Spears, supra, did not impose strict liability on surgeons for leaving a sponge in the patient. The circuit court denied the motion to reconsider. Sargent voluntarily dismissed the claims against Dr. Meek, and the case proceeded to trial only on the issue of dam ages. The jury awarded Sargent $100,000. Rogers filed a motion for a new trial, arguing that the court improperly granted Sargent's motion for partial summary judgment as to liability. The court denied the motion, and Dr. Rogers appeals.
On appeal, Dr. Rogers argues that Sargent failed to show that there was no genuine issue of material fact. He also argues that Arkansas has not adopted a rule of strict liability in retained foreign-object cases. Finally, he argues that a rule imposing an absolute duty of surgeons to remove all foreign objects is inconsistent with Arkansas law .
Under Arkansas law, the burden of proof for a plaintiff in a medical malpractice case is fixed by statute. See Ark. Code Ann. § 16-114-206. The statute requires that, in any action for a medical injury, expert testimony is generally necessary regarding the skill and learning possessed and used by medical care providers engaged in that speciality in the same or similar locality. See Young v. Gastro-Intestinal Ctr., Inc., 361 Ark. 209, 205 S.W.3d 741 (2005); Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002). There is, however, an exception to the requirement for expert testimony when the asserted negligence falls within the comprehension of a jury of laymen. Specifically, the statute provides as follows:
Haase, 323 Ark. at 269, 915 S.W.2d at 678. Placing a surgical sponge in a patient's incision and failing to remove it when surgery is completed is an obvious act of negligence that a jury can determine without expert testimony. Spears, supra; Nelms v. Martin, 100 Ark.App. 24, 263 S.W.3d 567 (2007). By the terms of the statute, Sargent was thus not required to proffer expert testimony to establish Dr. Rogers's negligence in leaving the sponge in his body. However, this does not mean that Sargent is entitled to judgment as a matter of law. The "common knowledge" exception merely allows Sargent to present his case without the use of expert testimony; it does not conclusively establish his case. While the exception does not require Sargent to produce expert testimony in presenting his case, it likewise does not preclude him from using expert evidence in order to prove negligence on the part of Dr. Rogers.
Johnson v. Greenfield, 210 Ark. 985, 991, 198 S.W.2d 403, 405-06 (1946) (quoting Arkansas Light & Power Co. v. Jackson, 166 Ark. 633, 640, 267 S.W. 359, 361 (1924)).
Neither the Medical Malpractice Act nor our case law provides that the mere presence of a foreign object in a surgical patient establishes liability on the part of the surgeon as a matter of law. Instead, "[w]hether the particular act was negligent is for the jury to decide, after considering the circumstances of the case." Spears, 168 Ark. at 363, 270 S.W. at 526. Although decided in 1925, Spears has never been overruled and remains the law in this jurisdiction. Despite the Spears holding that the surgeon cannot relieve him self from liability by delegating the responsibility for counting the sponges to the nurses assisting him, the court went on to hold that the surgeon was allow ed to present evidence to the jury that explained "the circumstances of the case." Dr. Rogers did so in the form of Dr. Mahone's affidavit stating that the sponge was left in an area of Sargent's abdomen that was relatively inaccessible and unlikely to be visible to Dr. Rogers as he performed the surgery. Dr. Mahone also said that it was reasonable and within the standard of care for Dr. Rogers to rely on the nurses' sponge counts as being "correct." From this evidence, a jury could reasonably find that, despite leaving a sponge in Sargent's abdomen, Dr. Rogers was not negligent in doing so, precluding a consideration of damages. However, the jury, when given "the circumstances of the case," Spears, 168 Ark. at 363, 270 S.W. at 526, may determine Dr. Rogers to have been negligent, making damages an appropriate consideration.
The evidence presented by Dr. Rogers created a jury question as to his liability, and summary judgment was inappropriate. We therefore reverse and remand for a new trial.
Reversed and remanded.
HENRY and BROWN, JJ., agree.