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Failure to count results in a claim

11 June 2021

By Letmore Chigudu, Case Manager, Medical Protection


A 70-year-old pensioner and businesswoman with a history of malignant rectosigmoid adenocarcinoma was admitted for resection. The surgery was done by Dr K, the primary surgeon, and Dr D as the assistant. The patient was discharged within the expected length of stay for a procedure of that magnitude into the care of her GP, with the assurance of both the doctors and nursing staff that the surgery was a success. The patient’s health improved, and she managed to live as normally as possible in that the initial symptoms that had caused her to require surgery had been resolved.

Everything seemed to have been going well for about a year until the patient started experiencing various symptoms that escalated to an unbearable state of health. This included unresolving diarrhoea, excruciating abdominal pain at the site of the initial surgery, general body malaise, recurrent fever and abdominal distension amongst other symptoms. Two years after the onset of these symptoms, the patient consulted with her GP who noted that the patient was presenting with signs of septicaemia. After a series of tests and imaging, a mass in the patient’s abdomen was detected. Further tests revealed that the pleural membranes appeared to have ruptured and her colon appeared to have deteriorated to the extent that it needed to be severed. The mass turned out to be a retained surgical swab that had been in the patient’s abdomen for more than two years after the initial surgery.

The patient consulted with Dr B who admitted her for urgent surgery to remove the swab. The procedure was performed by Dr K and Dr D, who had done the initial surgery. Intraoperatively, it was discovered that apart from the internal septic wounds and abdominal abscess, the swab itself had also decayed, resulting in the erosion of a large portion of the colon to the extent that it had to be removed. Resection of the small bowel and primary anastomosis was performed, as well as drainage of the abscess. The patient was monitored under Dr K’s care who did not anticipate any long-term medical issues associated with the resection of the bowel.

The patient sued the doctors (who were members of Medical Protection) and the hospital, alleging negligence due to, among other things, their failure to count the relevant surgical materials that were used during the procedure. Investigations revealed overwhelming evidence of negligence and breach of the duty of care.

How did Medical Protection assist?

A team of experienced medical defence lawyers were appointed by Medical Protection to defend the claim and act in the best interests of Dr K and Dr D, who were also assisted by Medical Protection’s internal advisers.

After thorough investigations by the team were concluded, it was agreed that the case ought to be settled. The view was that liability should be apportioned between the doctors and the hospital, but how would this be divided? In this regard, it was argued that the actual counting of the swabs was mainly the duty of the nurses and the decision of the surgeons to close the surgical site was dependent on the information provided to them by the nurses. The nursing notes had also clearly stated that all swabs had been accounted for.


The apportionment of liability between the doctors and the hospital was successfully negotiated down from 50/50 to 20/80 in the doctors’ favour. The defence team were successful in their assertion that even though it is the doctor who places the swabs into the surgical site and has full view of the site, swabs tend to get pressed into all sorts of nooks and crannies in the body and disappear from view – which is exactly why the nurse has to do the count before closure. Had the nurse notified the doctors otherwise, the doctors would have surely checked before closing the surgical site. However, in this instance the nurse had recorded and communicated incorrect information to the doctors, which meant that the hospital’s nursing staff were primarily at fault.

Learning points

Even though nurses are responsible for counting swabs, this does not absolve the surgeon from the responsibility to ensure that a procedure is performed safely and according to acceptable surgical standards. 

Different defendants can co-operate with one another in the correct circumstances. The purpose of litigation is not to punish the party at fault, but to put the wronged party in the position they would have been in had the wrong not occurred. It is important that all parties have access to good balanced experts whose knowledge is up to date. This is crucial when it comes to deciding whether or not to settle a matter, and how to apportion liability between defendants.