Doctors carry responsibility during surgeries 

Janice T. from Russian Hill asks this week’s question:

Q: “I went in for a cosmetic surgery and developed an infection. Approximately a week later, I went back to the doctor who told me it was not uncommon to have a small infection develop and he gave me an antibiotic and a topical cream. A week after that, it was not any better — and indeed worse. He accused me of not keeping the area clean. I finally got fed up with him and went to another doctor and she said that there was something inside the wound. She opened it up and found a gauze sponge. I told my surgeon and he said his nurse told him all the sponges were accounted for. He will not accept responsibility. What do I do?”

A: Janice, these are some of the most unfortunate cases that we see: cosmetic surgery cases gone bad. In some instances, the patient is complaining that they are not satisfied with the result. Cosmetic procedures are not guaranteed to result in perfection and sometimes the results are deemed within the acceptable parameters of the procedure, but are not what the patient was expecting. These concerns most often do not merit a legal action as the issue is one of taste rather than medical negligence.

Medical negligence, or malpractice, is a legal doctrine wherein a patient may sue their health care provider for injuries sustained either by an act or omission of the doctor. In medicine, it is recognized that there are different approaches to treating a condition or disease as well as recognized risks associated with every procedure.

To prove medical negligence under California law, you must prove that there was a breach of the standard of care, meaning that the doctor acted in a manner that is not consistent with the method and/or practice of other doctors who are in the same or similar community. This legal doctrine recognizes that there may be different standards of care depending on where the treatment occurred, such as rural areas, where there is no access to modern medical diagnostic equipment.

In order to prove a medical negligence case, California law requires that the plaintiff shows evidence regarding the breach of the standard of care through testimony of a medical expert qualified to offer an opinion on the matter. There is, however, a legal doctrine that presents an exception to this rule — res ipsa loquitur, the Latin phrase meaning the “thing speaks for itself.” This doctrine is most recognized by the example of when a piece of furniture, or a safe, is being hoisted into the air and falls on the head of someone and causes an injury. Because there is no way this could have happened except in the situation where someone was negligent, the injured party is relieved of the burden of showing exactly what the negligence was.

If applicable, the doctrine of res ipsa loquitur establishes the presumption of negligence and requires the defendant to come forward with evidence to disprove it. The presumption that an accident was caused by the defendant’s lack of care arises when the evidence satisfies three conditions: The accident must be of a kind that ordinarily does not occur unless someone is negligent; the accident must be caused by an agency or instrument within the exclusive control of the defendant; and the accident must not have been due to any voluntary action or contributory fault of the plaintiff.

Another factor that some cases have considered in applying the doctrine is that the defendant may have superior knowledge of what occurred and that the chief evidence of the accident’s cause may be accessible to the defendant but inaccessible to the plaintiff.

In the 1937 case of Ales v. Ryan, the California Supreme Court ruled that the doctrine of res ipsa loquitur applied to a case wherein a doctor was sued for the malpractice death of a patient related to an infection that stemmed from a retained sponge. The court, in other similar cases, has held a doctor liable, under this doctrine, for the conduct of his nurses in failing to get the count right because he is considered the captain of the ship.

Therefore, unless your doctor can identify some legitimate reason that the sponge was left in your body, it can be inferred from the sponge’s presence that it was the result of negligence and you will most likely be entitled to recover the economic costs for treatment, time off work, etc., and non-economic damages such as pain, discomfort, disfigurement, etc. I hope that what he has damaged can be repaired.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to

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