(dissenting) — Dr. Robert Ireton placed a Penrose drain in Mary Lou Miller. It is undisputed that the drain placement was to be temporary and that it was to be removed in its entirety. Dr. Karny Jacoby, caring for Miller in Dr. Ireton’s stead and following Dr. Ireton’s written direction that the drain be removed, attempted to remove the drain. It is undisputed that the drain broke and a portion remained in Miller’s body. A subsequent surgery was required to remove the piece of drain which remained inside of Miller.
The majority opinion relies on RCW 7.70.030(1), 7.70.040(1), and Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983) for the proposition that medical malpractice must be proven through expert testimony establishing a violation of the appropriate standard of care. The opinion states that Miller has failed to hire an expert witness who will tell the court that either Dr. Ireton negligently placed the Penrose drain or that Dr. Jacoby negligently removed or failed to remove the Penrose drain or both. Without the expert testimony, her claim fails. This is the general rule. If the general rule applies, no malpractice can be proven, and Miller is on her own and out-of-pocket for the additional surgery to remove the foreign object left inside her.
However, this case is not about the general rule. A case *266involving a foreign object left in the body is a special exception to the general rule. The case is controlled by the opinion in Bauer v. White, 95 Wn. App. 663, 976 P.2d 664, review denied, 139 Wn.2d 1004 (1999). There, Judge Sweeney framed the question in the case as follows:
This medical malpractice case pits the apparent categorical requirement of RCW 4.24.290 and RCW 7.70.040 for expert testimony to support a medical negligence claim against the long-standing Washington rule that unintentionally leaving a foreign object in a surgical patient is negligence per se. . . . The question here is whether a patient must present an expert medical opinion that unintentionally leaving a foreign object in a surgical patient violates the standard of care for physicians in this state. We conclude that she need not, and reverse and remand for trial on the issues of causation and damages.
Bauer, 95 Wn. App. at 664 (citation omitted). The question in the case before us is identical. The answer should be identical.
Miller has stated facts uncontroverted: a portion of a Penrose drain was not removed from the body; the portion of the Penrose drain was a foreign object; and a portion of the Penrose drain was inadvertently left in her body. No expert testimony was necessary; the violation of the standard of care was established as a matter of law:
Simply put, it is not reasonable prudence to unintentionally leave a foreign substance in a surgical patient.
Id. at 668. The summary judgment must be reversed.
Contrary to the opinion of the majority, it is of no consequence at summary judgment that the defendants had experts to testily to standard of care issues for either or both of them. Such observations may be important in apportioning liability between the treating physicians, but they are valueless as to liability to the plaintiff. That testimony is not sufficient to overcome the inference of negligence which flows from a showing that a foreign object was inadvertently left in the body.
Absent expert testimony [for the plaintiff], evidence is sufficient to support an inference that negligence was the defen*267dant’s when a foreign object is left in the patient and the defendant is either (a) the surgeon in charge of the operation, or (b) a doctor participating in the operation under circumstances warranting a reasonable inference that he or she had the responsibility to remove the object. . . . Contrary evidence supporting an inference that negligence was not the defendant’s often will not dispel the inference that it was; even if such evidence he “weighty, competent and exculpatory,” it will merely generate an issue of fact for the jury to decide under proper instructions.
(Emphasis added.) Van Hook v. Anderson, 64 Wn. App. 353, 359-60, 824 P.2d 509 (1992) (footnotes and citations omitted).
It is also of no consequence that the initial placement of the Penrose drain was intentional. From the time Dr. Jacoby attempted removal of the drain, pursuant to Dr. Ireton’s written direction, a portion of the drain inadvertently remained in Miller. In Van Hook the sponges were intentionally placed in the patient temporarily. It is the fact that the sponge was inadvertently left in Van Hook and that the drain was inadvertently left in Miller that the Bauer court says controls. The Bauer court would not only refuse the defense motion for summary judgment, it would send this case to the jury:
Once it is established that the object was inadvertently left inside the patient’s body (i.e., negligence), the patient is entitled to any damages that were proximately caused from such negligence.
A patient has the right to have the foreign object removed from his or her body, even if removal is psychologically motivated. Under these circumstances, the physician’s negligence is the “unequivocal proximate cause of some damage,” including the additional surgical procedure. A physician may also be liable for pain and suffering caused by the removal of the object.
Bauer, 95 Wn. App. at 669 (citations omitted). Clearly, Bauer contemplates Miller defeats summary judgment and wins some damages.
*268The majority opinion concedes that “[e] xpert testimony is certainly not required to understand that objects placed in the body during surgery must be properly accounted for and removed at the completion of surgery.” (Emphasis added.) Majority opinion at 262. It is argued that Bauer does not apply since Dr. Jacoby accounted for the Penrose drain, because she removed it. The majority misapplies the rule. Can there be any doubt that, if the nurse in Van Hook removed ten sponges instead of nine, but one sponge had torn and a fragment remained inside the patient, the resulting liability would have been the same? Even if Dr. Jacoby “accounted for” the one drain put in place, she failed to properly remove the drain. She inadvertently left two inches of the drain in Miller. A foreign object inadvertently remained in the patient, Bauer controls, and no expert testimony on behalf of the patient is required.
Finally, the majority opinion suggests that the wound had been closed at the time of insertion of the Penrose drain, and that this fact makes the removal of the drain a postsurgical procedure not covered by Bauer or Van Hook. No law is cited for this proposition. And factually, the closing of the surgical wound could not be completed until the Penrose drain was taken out of the wound. Complete removal of the drain would have completed the surgical procedure. The moment of Dr. Jacoby's incomplete removal of the drain resulted in a foreign object that was placed in the body intentionally and temporarily during surgery, then becoming a foreign object inadvertently and permanently left in the patient at the completion of surgery.
The majority’s position cannot be reconciled with Bauer. Therefore, I respectfully dissent. The summary judgment should be reversed.
Review denied at 142 Wn.2d 1027 (2001).