Penal liability from retained foreign body inside the surgical site

The Authors focus on the liability of the surgery team members in the case they inadvertently forget behind in the patient's body a foreign object, which causes injuries and/or death. The Authors underline that, according to the current case law regarding medical malpractice, both the main surgeon and their assistant/subordinate are liable for engaging in a markedly imprudent and/or negligent conduct, such as not double-checking scrupulously the surgical site before its closure in order to highlight forgotten foreign bodies. As well, the Authors underline that either the circulator nurse or the theatre nurse can be considered punishable by law when that medical error occurs, even if they are responsible for the count of the instruments used in the course of the surgery. Conversely, the main surgeon and his or her assistant are always directly responsible, due to the fact that the nurses' count procedure represents merely an additional control measure, without substituting at all the check the surgeons must obligatory conduct on the surgical site. Finally, the Authors point out that, as the count procedure is performed by the members of a surgical team, where a hierarchy-based relationship rules, the main surgeon is the liable for any preventable and avoidable adverse event provoked by the nursing staff as a consequence of the objective responsibility due to culpa in eligendo and culpa in vigilando.