Olander v. Johnson

In Olander v. Johnson, 258 Ill. App. 89 (1930), the plaintiff sued a doctor for leaving a sponge in her body. The jury found for the plaintiff, but the appellate court reversed. The court noted that, during the operation, the doctor had been assisted by several nurses, none of whom were in his direct employ. One nurse brought the sponges into the operating room, counted them, and handed them to the doctor. As the sponges were used, the defendant threw them into a receptacle, and another nurse put them into piles. When the operation was finished, but before the incision was closed, the unused sponges were counted by one nurse and the used sponges were counted by another nurse. The total count was compared with the number of sponges brought into the operating room, and the nurse in charge announced whether the count was correct. The doctor relied on this procedure and on the nurses' assurances that the sponge counts matched up. Olander, 258 Ill. App. at 92-94. In reversing the judgment for the plaintiff, the appellate court explained that "the leaving of a sponge by a physician in a patient is not negligence per se." Olander, 258 Ill. App. at 96. One or more nurses involved in the sponge count had made a mistake (Olander, 258 Ill. App. at 97), and, under the circumstances, the doctor was not liable. Specifically: (1) he was not vicariously liable, because the nurses were not his employees (Olander, 258 Ill. App. at 98); and; (2) he was not directly liable, because he had exercised due caution: in accordance with the hospital's rules, he had reasonably relied on the nursing staff, including the chief nurse's assurance that the sponge count was correct (Olander, 258 Ill. App. at 99).