Harle v. Krchnak

On Motion for Rehearing

In view of the motion for rehearing filed and the brief of Amicus Curiae in support thereof, the Court has carefully reconsidered its original opinion.

The general rule applicable to cases of medical malpractice is well settled in Texas. The law presumes that the physician has done his work properly. The plaintiff can recover only when it can be affirmatively shown that the diagnosis or treatment was not an error in judgment but a matter of negligence, and that such negligence was the proximate cause of the damages claimed by the plaintiff. Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App., El Paso 1964, n. w. h.). Ordinarily both negligence and proximate cause must *815 be proven by medical testimony. Bowles v. Bourdon, 148 Tex. 1 , 219 S.W.2d 779 , 13 A.L.R.2d 1 (1949).

An exception to this rule has been recognized where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, as where the negligence alleged is in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. In such cases the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains. Bell v. Umstattd, 401 S.W.2d 306 (Tex.Civ.App., Austin 1966, writ dism.); Henderson v. Mason, supra; Dobbins v. Gardner, 377 S.W.2d 665 (Tex.Civ.App., Houston 1964, writ. ref., n. r. e.); Gorsalitz v. Harris, 360 S.W.2d 574 (Tex.Civ.App., Houston 1962, n. w. h.); Edwards v. West Texas Hospital, 89 S.W.2d 801 (Tex.Civ.App., Amarillo 1935, writ dism.); Hess v. Millsap, 72 S.W.2d 923 (Tex.Civ.App., Austin 1934); Martin v. Eschelman, 33 S.W.2d 827 (Tex.Civ.App., Texarkana 1930, writ ref.).

The doctrine of res ipsa loquitur is generally held by Texas courts to be inapplicable to medical malpractice cases. Bell v. Umstattd, supra; Shockley v. Payne, 348 S.W.2d 775 (Tex.Civ.App., Amarillo 1961, ref., n. r. e.); Hess v. Millsap, supra; Barker v. Heaney, 82 S.W.2d 417 (Tex.Civ.App., San Antonio 1935, error dism.). But see Martin v. Eschelman, 33 S.W.2d 827 (Tex.Civ.App., Texarkana 1930, writ ref.).

A rule of absolute liability in cases of this sort would be much more drastic than the rule of res ipsa loquitur, which merely makes the question one for the jury. Dietze v. King, 184 F.Supp. 944 (E.D.Va.1960); Jackson v. Hansard, 45 Wyo. 201 , 17 P.2d 659 (1933); Aderhold v. Stewart, 172 Okl. 72 , 46 P.2d 340 (1935); Martin v. Eschelman, supra.

It appears to this Court that once the fact is established that the doctor left a foreign object in the body of his patient without a medical reason for so doing, the established rules of law governing the trial of . negligence actions should be applied. If, in such a case, viewing all of the evidence in the light most favorable to the defendant, the only reasonable conclusion to be drawn is that of negligence, then a directed verdict would be proper. If, on the other hand, there is any evidence raising an issue of fact as to negligence, an issue must be submitted to the jury.

The plaintiff alleged that appellant “failed to fulfill the duty of reasonable care he owed to plaintiff in the performance of the operation,” and was negligent in failing to ascertain that foreign matter was within plaintiff’s body prior to closing the operational incision, and in allowing it to remain therein. Ordinarily what constitutes reasonable care is a question for the jury. There is evidence that appellant exercised some degree of care in that he made a visual inspection of the operational area and directed that a sponge count be made. Whether this amounted to reasonable care under the circumstances was a question for the jury.

Plaintiff also alleged that those assisting in the operation failed to “exercise a reasonable degree of care in performing their proper duties in counting the sponges;” that they were employees, servants, agents, or representatives of appellant; and that he was responsible in law both for the improper direction of said employees and because said employees’ negligence is imputed to him under the doctrine of re-spondeat superior.

It is undisputed that the nurses assisting the doctor made a mistake in counting the sponges, a mistake which they discovered on making a recount. The nurses were experienced and had assisted the doctor in many previous operations. They were employed by the hospital and were paid by it. It is undisputed that between *816 96 and 144 sponges were used. They were bloody and had a tendency to stick together. The sponges are made up of several thicknesses of cheesecloth. There is no evidence to show whether these sponges are manufactured of a continuous length of cloth or whether small pieces of cloth are in some manner joined together. There is no evidence that one or more of the sponges had come apart. As presented to the court the evidence simply showed that the sponges were not counted correctly. The fact that they were bloody could not have caused the mistake, nor could the fact that two or more of the sponges might have stuck together. Had that been the case, the number of used sponges counted certainly would not have equaled the number furnished for use. There is no evidence that the count was necessarily hurried. The only reasonable conclusion to be drawn from the evidence detailing how the count was made, and the circumstances under which it was made, is that the circulating nurse was guilty of negligence in failing to properly count the sponges. That this was a proximate cause of the failure to remove the sponge from the body of appellee is established by the testimony of appellant that he relied on the count.

In Porter v. Puryear, 153 Tex. 82 , 262 S.W.2d 933 (1954), the Court said:

“The vital inquiry in any case involving proximate cause is whether the negligent act set in motion a natural and unbroken chain of events that led directly and proximately to a reasonably foreseeable injury or result. If so, it is immaterial that the actual injury was done by the last event in the series.” (citing authorities)

Here the doctor was told that the sponge count was correct. His visual check confirmed this information. As a result he closed the incision, leaving the sponge in the patient’s body, which necessitated the second operation. The negligent act led directly and proximately to a reasonably foreseeable result, the second operation, and the physical pain and mental anguish caused thereby.

There is some evidence that ap-pellee suffered physical pain and mental anguish prior to the trial of the case as a direct and proximate result of the second operation necessitated by the negligence established. We cannot say that the answer made by the jury to the issue on damages, $1,000.00, is so contrary to the weight of the evidence as to be clearly wrong.

Appellant is responsible for the damages found by the jury to have been directly and proximately caused by leaving the sponge within the body of appellee. McKinney v. Tromly, 386 S.W.2d 564 , 12 A.L.R.3d 1011 (Tex.Civ.App., Tyler 1964, ref., n. r. e.).

The motion for rehearing is granted. The judgment of the trial court is affirmed, Associate Justice Peden not participating.