A. The evidence did not support a res ipsa loquitur instruction as the element of exclusive control was missing
1. Dr. Yusuf lacked exclusive control over the sponges for the sponge count
Contrary to the majority, I conclude that the exclusive control condition, necessary for the giving of a res ipsa loquitur jury instruction, was missing on these facts. Rather than being factually akin to Ales v. Ryan (1936) 8 Cal.2d 82 [64 P.2d 409] (Ales), in my view the facts here are more similar to those of Sherman v. Hartman (1955) 137 Cal.App.2d 589 [290 P.2d 894] (Sherman).
In Sherman, the appellate court held that the trial court properly refused to give an instruction on res ipsa loquitur as to the defendant doctor who performed a hysterectomy on the plaintiff. Due to the plaintiff’s blood loss and shock, an assisting doctor started a blood transfusion and determined that the plaintiff was in good condition and the transfusion was working properly before leaving the plaintiff in the care of hospital personnel with instructions to watch the plaintiff’s blood pressure. It was undisputed that the injury occurred when the infusion needle slipped out of the vein and caused blood to go into the soft tissue during the defendant doctor’s absence, while either the nurse or her replacement was in the room with the plaintiff. (Sherman, supra, 137 Cal.App.2d at p. 593.) The court held that the defendant doctor did not have exclusive control over the instrumentality because he left the plaintiff in the care of the nurse who was trained to perform routine duties such as monitoring a transfusion. (Id. at p. 595.) The court also stated that to require a surgeon to remain with a patient until a transfusion was complete would be time consuming and costly. (Ibid.)
*1401Viewing the evidence here in the light most favorable to the contention that the instructions are applicable, the expert testimony established that Dr. Yusuf never controlled the sponge count. Fields’s expert conceded that the nurses had the ultimate responsibility for the sponge counts and that the hospital protocol demanded the nurses conduct the counts. The logical inference is that the nurses at least shared control over the sponge count. This is justified by evidence that the hospital trained the nurses, who were required to conduct sponge counts in conformance with the hospital protocol, and to communicate those results to Dr. Yusuf.
The cases cited by Fields for the proposition that Dr. Yusuf had exclusive control over the sponges are distinguishable. In Ybarra v. Spangard (1944) 25 Cal.2d 486, 494 [154 P.2d 687], the plaintiff awakened from an appendectomy surgery with pain in his right arm, which gradually progressed to paralysis. The plaintiff could not identify who caused his injury and so filed an action for negligence against the nurse, the anesthesiologist, and two doctors. All the defendants had control over the instrumentalities that may have harmed plaintiff. Here, on the other hand, the evidence shows that the nurses, not Dr. Yusuf, had actual control and responsibility for the routine sponge count, which proved to be incorrect. Unlike Ybarra, here the potential tortfeasor was clearly identifiable.
Other retained sponge cases cited by Fields are factually distinguishable in that in those cases, unlike here, there was the element of the doctor’s exclusive control. In Ales, our Supreme Court did indeed hold that the res ipsa loquitur instruction was proper in a case against the doctor where a sponge was left in a surgical site. At that time, the hospital evidently had no protocol requiring sponge counts, and the evidence of the manner in which the operating room functioned led to the then reasonable conclusion that the surgeon oversaw and had control over the entire procedure. That is not the situation here where the nurses had the sole responsibility for conducting sponge counts according to the hospital’s rules and in fact did conduct the count, reporting it as correct. Armstrong v. Wallace (1935) 8 Cal.App.2d 429, 437-438 [47 P.2d 740] is also distinguishable. While the appellate court there found that the trial court erred in not giving a res ipsa loquitur instruction in an action against the doctor, neither the nurses nor the doctor conducted sponge counts and the doctor did not request a sponge count. It was not clear who actually exercised control over the sponge inventory and it was thus reasonable to hold all the defendants accountable on those facts.
Counting sponges is a routine task, like monitoring a blood transfusion, certainly within the scope of duties for highly trained nurses. As in Sherman, supra, 137 Cal.App.2d at page 595, Dr. Yusuf had the right to assume that nurses provided by the hospital had the proper training to conduct sponge *1402counts in accordance with the hospital protocol. Dr. Yusuf fulfilled his duty to visually and manually explore the wound before closing it. Since the sponge count did not come back as incorrect, he was not required to order a search of the operating room or an X-ray to uncover any missing sponge. He could have done no more.
Therefore, I conclude that here the trial court properly refused to give the res ipsa loquitur instruction as the evidence did not show that Dr. Yusuf had exclusive control over the sponges or their count.
2. Exclusive control also did not exist because it was at least equally probable that the nurses’ negligence caused the injury
The purpose of the exclusive control requirement is to link the defendant with the probability that the accident was negligently caused. (Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d 33].) In LaPorte v. Houston (1948) 33 Cal.2d 167 [199 P.2d 665], our Supreme Court held that the doctrine of res ipsa loquitur did not apply where the plaintiff was injured when his car rolled forward and hit him while the defendant mechanic was working on it. The court held that it was equally probable that the shifting mechanism of the car could have been affected by some fault in the mechanism as by a negligent act of the mechanic. (Id. at p. 170; see McKinney v. Nash (1981) 120 Cal.App.3d 428, 440 [174 Cal.Rptr. 642] [testicular atrophy not caused by instrumentality in the exclusive control of anesthesiologist because vascular damage was the likely cause of plaintiff’s testicular atrophy, rather than neurological damage due to administration of spinal anesthetic]; O’Connor v. Bloomer (1981) 116 Cal.App.3d 385, 392 [172 Cal.Rptr. 128] [surgeon did not have the exclusive control over aortic valve supplied by hospital, which in its answers to interrogatories took full responsibility for the error in providing an empty carton, causing the surgeon to use another type of valve].)
Likewise, here, it was at least equally probable that the nurses’ negligence in counting the sponges was the cause of the injury to Fields. The nurses determined how many sponges were to be used in accordance with the hospital protocol and were solely responsible for the count. They, more likely than Dr. Yusuf, were responsible for the retained sponge.
B. The trial court properly rejused to give nondelegable duty instructions
The majority concludes that the trial court erred in failing to instruct that Dr. Yusuf was responsible for ensuring that all sponges were removed before he closed the incision and that this duty could not be delegated to the nurses. *1403In so doing they rely on Ales and Truhitte v. French Hospital (1982) 128 Cal.App.3d 332 [180 Cal.Rptr. 152] (Truhitte). Unlike the majority, I find Ales factually distinguishable from these facts. In Ales, although the surgeon was in charge of the operation, he did not undertake a visual or manual exploration of the wound to determine if there were any retained sponges. (Ales, supra, 8 Cal.2d at pp. 89, 102.) The nurse testified that she did not conduct the count, and there was no evidence that the hospital in Ales had any protocol requiring sponge counts. Therefore, responsibility for the removal and counting of the sponges could only rest on the surgeon. Here, on the other hand, the nursing staff had the sole responsibility and duty to conduct sponge counts under the hospital protocol. The hospital protocol mandated the number of sponge counts for each type of surgery, and required the nurses to give an audible count, and to notify the surgeon of each correct or incorrect count. The hospital’s protocol specified that the nurses must conduct an initial count before the commencement of the operation, a cavity count at the close of any cavity, and a final count at skin closure. Dr. Yusuf’s only nondelegable duty was to visually and manually search the surgical field for sponges before closing the incision, which, based on the evidence, he fulfilled.
Reliance on Truhitte for the proposition that the surgeon has a nondelegable duty to remove sponges and other foreign objects from the patient’s body is also unavailing. At most, the court discussed the situation where an assistant became a temporary employee of a surgeon and further observed that when a patient in the 1970’s entered a modem hospital operating room, equipped with both surgical appliances and nurses trained for surgical service, the nurse was acting for the employer hospital and not for the surgeon. Furthermore, the surgeon could not be held responsible for the nurse’s negligent acts unless the surgeon should have been able to prevent the negligence. (Truhitte, supra, 128 Cal.App.3d at pp. 347-348.) Here, the evidence clearly established Dr. Yusuf’s responsibility was to observe the wound for the existence of a foreign body, and after finding none, to call for the sponge count and close the surgical site once he had been assured of an accurate sponge count.
C. The captain of the ship doctrine does not apply here
Assuming the viability of the aged doctrine,1 there is no special relationship, justifying the captain of the ship jury instruction, as required by *1404Truhitte, established on these facts. It was the hospital and not Dr. Yusuf who had direct control over hiring, training, paying, and firing of nurses. The hospital and the nurses controlled the operational details by establishing protocols instructing the nurses on the number of sponge counts, when to perform the counts and how to perform the counts, without input from Dr. Yusuf. The nurses counted the sponges and opened up the packets before Dr. Yusuf ever stepped into the operating room. The hospital provided the sponges and surgical equipment. Dr. Yusuf did not have control or supervision over how the nurses performed their sponge count duties, and at most worked side by side in performing the surgery with the nursing staff for the relatively brief period of one and one-half hours.
D. No prejudice was suffered by plaintiff from the trial court’s refusal to give the instructions
Finally, Fields did not incur prejudice from the refusal of the trial court to give the requested instructions. In determining whether an error of instructional omission was prejudicial, the reviewing court must evaluate “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581 [34 Cal.Rptr.2d 607, 882 P.2d 298] (Soule), fn. omitted.)
Here, even though the requested instructions were not given, Fields was able to fully present evidence that Dr. Yusuf controlled the nurses, and breached his duty of care to remove the sponges. The evidence, however, tended to compel the conclusion that Dr. Yusuf did not control or direct the nurses and that he discharged his duty with respect to the removal and counting of the sponges. This evidence was contradicted by other testimony which established that the nurses, and not Dr. Yusuf, had the duty to count sponges; that the nurses performed their duties under the direction and supervision of the hospital and not Dr. Yusuf; and that Dr. Yusuf fully performed his duty by searching the surgical site and announcing that he was closing.
While the particular instructions at issue here were not given to the jury, the jurors were told of the concepts of vicarious liability (Judicial Council of Cal., Civ. Jury Instns. (2003-2004) CACI No. 510) and substantial factor causation (CACI Nos. 431 & 500), which instructed that Dr. Yusuf could not avoid responsibility because another person was a substantial factor in causing Fields’s injury. These instructions fully and fairly covered the law. (Soule, supra, 8 Cal.4th at pp. 580-581.) Nevertheless, the jury weighed the evidence and determined that Dr. Yusuf was not negligent, refusing to hold him liable for injury caused by the retained sponge.
*1405I conclude that the trial court did not err in refusing to give the requested instructions and further, plaintiff was not prejudiced by the failure to give the instructions. I would affirm the judgment.
Respondents’ petition for review by the Supreme Court was denied February 7, 2007, S149156.
Dr. Yusuf draws our attention to the recent case from the Wisconsin Supreme Court which is almost factually identical to this case, where that court declined “to resurrect the anachronistic ‘captain of the ship’ doctrine” because with the development of modem full-care hospitals and the corresponding diminishing role of an individual doctor’s control over the operating room, the doctrine across the country has “lost its vitality.” (Lewis v. Physicians Ins. Co. (2001) 2001 WI 60 [243 Wis.2d 648, 627 N.W.2d 484, 493-494].)