Scenario

• A patient goes into theatre for a gall bladder operation. When the surgeon has excised the gall bladder, sutured and is ready to close up she asks the theatre sister if the swabs have all been removed. The sister answers in the affirmative and the surgeon closes up. The patient suffers pain and the wound does not seem to heal properly. She is given pain killers and her wound is dressed but nothing else is done during her visit to the hospital. Eventually, a month later she notices bits of lint emerging from the wound. She points this out to the sister on duty who immediately contacts the surgeon, and says that it seems that a swab has been left inside the patient.
• The patient wishes to sue the surgeon on the basis that ‘the facts speak for themselves’ – she went into theatre without a swab inside her and came out of theatre with a swab inside her body.

–If you were the judge would you decide that ‘the facts speak for themselves’ or would you say the patient still has to prove that the surgeon was negligent. Why or why not?