VICARIOUS LIABILITY

Ochoa v. Vered, No. 06CA2134 (Colo. Ct. App. Apr. 17, 2008)

In a case in which a sponge was left in a patient's abdomen during surgery, the Colorado Court of Appeals affirmed a lower court's judgment holding that a hospital protocol stating that "the members of the nursing surgical team will be responsible for counting sponges according to established procedure in order to provide quality patient care" does not overcome the presumption that the surgeon has the authority and responsibility to direct the nurses to recount the sponges as necessary. Accordingly, the court concluded that the lower court had properly instructed the jury regarding the "captain of the ship" doctrine. The court also concluded that the nurses' release from the negligence suit did not release the surgeon from vicarious liability for their negligence in miscounting the sponges.