(CN) – A surgeon is liable for malpractice, even if it was a nurse who allowed a sponge to remain inside a woman’s abdomen after a Cesarean section, the Colorado Court of Appeals ruled.
Dr. Eldad Vered performed the procedure on Gloria Ochoa, and his nurses told him before the end of the operation that all of the sponges had been counted. Still, Ochoa had to undergo a second surgery to remove a sponge.
Ochoa settled with the hospital and nurses, but she sued Vered and won a $1 million settlement. The jury found Vered to be 90 percent liable.
Vered appealed, claiming that the trial court should not have employed the “captain of the ship” doctrine to find him liable. Judge Webb upheld the decision.
“Dr. Vered failed to present evidence that he could not direct the nurses as to the sponge count,” Webb wrote.
Webb also disagreed with the doctor’s argument that Ochoa’s release of the nurses from the case released him from liability.
“The language in the settlement agreement evincing intent to preserve claims against Dr. Vered should be given effect,” the judge wrote.