The patient sued the hospital where she had her original gynecological surgery, her surgeon, a circulating nurse, a surgical scrub tech and the two staffing agencies that furnished the circulating nurse and the scrub tech.  The New York Supreme Court for Bronx County dismissed the circulating nurse, the scrub tech and their agencies from the case.

  The facts of the case were that the circulating nurse’s and the scrub tech’s only involvement with the case was to set up the instruments from the hysterectomy kit and see that an initial packet of fifteen lap pads were counted and placed on the field for the procedure.  After that they left the room and did not return.  

  The most important fact exonerating them from liability was that the surgical record clearly showed exactly when each of them entered the room and then left, before the case actually started.  Neither had anything to do with opening a second packet of lap pads that may or may not have been counted by the second nurse and tech pair.

  The Court believed the key error in the case was an inaccurate count when the patient’s incision was closed.

  That final count at closure was the responsibility of the surgeon and the circulating nurse and scrub tech in the room at the time, not these two individuals who were no longer present.  A nursing expert testified for the patient that no further count of the lap pads was undertaken when the first nurse and tech left the room after having counted and recorded the count when the first packet of lap pads was dispensed to the field.  Although that was true, the Court noted the expert never actually said that applicable standards required a hand-off count.  Even if a count was needed, it was only speculation that a count at that time would have changed what was done or neglected at closure.