ROGERS v. SARGENT
2010 Ark.App. 640
Dr. Marc ROGERS, Appellant,
v.
Alan SARGENT, Appellee.
No. CA09-1124.
Court of Appeals of Arkansas, Division II.
September 29, 2010.
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.1 In an amended complaint, Sargent asserted that the doctrine of res ipsa loquitur applied. Dr. Rogers denied that he was negligent in his treatment of Sargent. In his amended answer to Sargent's am ended complaint, Rogers asserted the affirmative defenses that Sargent's injuries were caused by persons not parties to the suit and that there was an intervening cause that independently injured Sargent. 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:
Probably the most common instance of malpractice which is brought into the courts arises out of surgical cases where the physician or attendant has left a sponge in the wound after the incision has been closed. That this is plainly negligence there is no doubt at all, and it matters not at all that many physicians testify that the best of surgeons sometimes leave a sponge or some other foreign substance in the bodies of their patients, for this is testimony merely to the effect that almost everyone is at times negligent. Whether the particular act was negligent is for the jury to decide, after considering the circumstances of the case. Surgeons cannot relieve themselves from liability for injury to a patient caused by leaving a sponge in the wound, after an operation, by the adoption of a rule requiring the attending nurse to count the sponges used and removed, and relying on such count as conclusive that all sponges have been accounted for.
168 Ark. at 363, 270 S.W. at 526 (quoting 21 R. C. L. Physicians and Surgeons § 33 at 388 (1918)).
1. The claims against the nurses were later dismissed as barred by the statute of limitations.