An all to frequent scenario was played out in New York’s Appellate Division, Fourth Department earlier this month, in the case of Bell v. Agarwal , 2008 NY Slip Op 07349 (4th Dept. 2008). A surgeon peforming abdominal surgery on Ms. Bell, the plaintiff, left a surgical sponge behind, inside the plaintiff, before closing her up and concluding the surgery. No matter what the other strengths or weaknesses of the case, when it comes to liability, most medical malpractice lawyers would conclude that there is a strong case against the surgeon/defendant Dr. Agarwal, based on these facts.

Dr. Agarwal, however, attempted to extricate herself from the case by claiming, in a motion to dismiss, that: the operating room nurses were responsible for the sponge count during the surgery; she, Dr. Agarwal, had relied upon their count; the nurses’ count must have been mistaken; and therefore, she, Dr. Agarwal, was not at fault.

In declining to dismiss the claims against Dr. Agarwal, the Court found that the plaintiff had raised a sufficient challenge to Dr. Agarwal’s moving papers by submitting an affidavit from a medical expert who opined that Dr. Agarwal had been negligent by failing to thorougly check the operative field before closing plaintiff’s incision, and had been additionally negligent by failing to notice the sponge, which should have been readily observable to a careful physician. Dr. Agarwal’s motion to dismiss was denied, and the claims against her will proceed, toward trial or a settlement.

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