explaining that expert testimony is gen- erally required to establish the standard of care in medical mal- practice cases ―because the nature of the profession removes the particularities of its practice from the knowledge and understand- ing of the average citizen‖
How later courts described this case
- explaining that expert testimony is gen- erally required to establish the standard of care in medical mal- practice cases ―because the nature of the profession removes the particularities of its practice from the knowledge and understand- ing of the average citizen‖
- holding that expert testimony is not required when a doctor left a needle inside of a patient during surgery
- holding that expert medical testimony was not necessary to establish negligence where surgeon left a needle in the patient's body, but stating that proof of proximate cause "requires some expert testimony in medical malpractice cases"
- stating that “[t]he loss of a surgical instrument or other paraphernalia[] in the operating site” is a situation in which “the propriety of the treatment received is within the common knowledge and experience of the lay[person]”
Written by the judges who cited it.
The opinion
STEWART, Justice
(dissenting in part and concurring in part):
I respectfully dissent.
The majority, in my view, misapplies a common sense rule, applicable in simple malpractice fact situations, and arrives at a result which would allow the jury to find negligence in total ignorance of whether Dr. Hicken’s conduct violated the applicable standard of care. Clearly this case falls within the scope of the rule that expert testimony in a medical malpractice case is necessary to establish proper standards of medical performance. In particular, the majority misapplies the rule that “loss of a surgical instrument or other paraphernalia, in the operating site, exemplifies [the] type of treatment” that is “within the common knowledge and experience of the layman.” Marsh v. Pemberton, 10 Utah 2d 40 , 347 P.2d 1108 (1959). In short, the plaintiff’s failure to produce expert testimony as to the standard of care will necessarily mean that a verdict is based on speculation.
It is an unrealistic rule that holds in all cases abandonment of a surgical instrument or other paraphernalia in a person during the course of an operation can be considered negligence by a lay person without regard for the nature of the surgical procedures involved. It need hardly be reiterated that a physician is not a guarantor of the results of an operation. Marsh v. Pemberton, supra. Nor does he warrant against all accidents which may occur during surgical procedures. The basis for fastening liability on a defendant in a malpractice suit is negligence, not the occurrence of an untoward circumstance. In the instant case, the sur *356 gical operation was not perhaps as unusual and complex as some of the advanced procedures now being used, but it clearly was of such a nature that application of the Marsh rule is inappropriate, and there is no evidence in the record which indicates that Dr. Hicken was negligent at all. There is even evidence that Dr. Hicken’s conduct may not have been the actual cause of the loss of the cutting instrument in the plaintiff. He testified that in operations of the type he performed on the plaintiff the surgical instrument sometimes breaks just below the eye through which the catgut thread is passed and that, given the nature of the operation, sound medical judgment often dictates leaving the instrument in the body if it cannot be readily located.
The inappropriateness of the legal rule applied by the majority is demonstrated by the testimony of Dr. Hicken. Operating inside a body cavity, he could not see what he was doing and had to orient his actions primarily by touch. He described the problems relating to the loss of the needle as follows:
A. Well, you are working down there, [inside the vagina], you have the retrac-tors in and you have — you’re bringing this [i. e., the needle] around on one side of the tissue and trying to bring it around and all at once you don’t have ahold of the needle and then the thing you do, you have to bring your forceps back out, then you poke — use your lights and you look in there to see if you can see it. You put your glove finger in and you try to palpate it to see if you can feel it and as a general rule one can feel and in knowing the exact area in which you were working, one can generally feel where the suture is or the needle is. In this case, we did not find it.
Q. All right. Now, for that needle to become loose from the holder that ratchet could be disengaged, did it not?
A. Well, the ratchet could be disengaged but the needle — by far the more common way of losing a needle in this operation is, you are working up in there —see, I told you, you put your finger here as a guide to exert a little pressure as you bring it around. You are working in a zone that has blood. There is fat. That means there is oils and it’s possible for this to just rotate and slip out of the needle holder. That’s the usual thing that happens.
The needle may also break off because of a defect in the needle itself or because of the forceps or other holding implement. Dr. Hicken stated:
For instance, we have no way of knowing whether the needle was whole or broken. From experience in handling these things, where the thread goes through the needle it is very thin and frequently a needle will break at that part but — and you have a little — just a splinter of the eye of the needle left and separates from the main shaft of the needle and when you pull your hemostat back you have nothing. Both the eye of the needle and the main curved needle still remains in situ. That means in position in the area in which you are working.
Loss of the needle could also occur for other reasons.
You are getting a bite of tissue — you are coming down and getting a bite of tissue — you see, here’s a ratchet that locks it. I showed you yesterday. Now, when you are sewing, you do not have your fingers in these openings of the ratchet. You take your hand out and put it against the palm here using this finger to give you a little force and a directional mechanism for the point of the needle and you come around like this. Now, sometimes you hit heavy muscles, sometimes you have thinner muscles, sometimes you have scar tissue. If the bladder and things have been out too long, that tissue has been irritated and there is a lot of scar tissue until you get some resistance in bringing the needle through and it’s very easy for the — possible that the needle, being in oil and blood and fatty tissue down there, too, that the needle could rotate and slip out. When we bring the needle — when we brought the needle holder out it was still locked *357 and the needle wasn’t in it so that’s why you assume that the needle was broken or lost.
The doctor was well aware of the relative hazards of searching further for the lost needle as opposed to leaving it within the body cavity. He consciously made a medical judgment as to which course of action would result in the least risks to the patient. He testified:
Well, because this woman was elderly. She was not in the best physical condition. We had had her on the operating table for one hour and to get X-ray machines at that time — we are talking about fourteen years ago — at that time we had to get X-ray machines from the basement up into the operating room and it would take too much time to complete that sort of a procedure and the second thing is that from my experience in such cases and from being very conversant with literature on this subject, as I was a Professor and teacher in medical schools, I knew that a needle left in this particular area was not particularly harmful to the patient. It is common knowledge that we leave metal in the pelvic area very frequently. Now, for example, in some of our operations instead of using sutures and ties to tie around bleeding blood vessels, we have an instrument that we go in there and we put a metal clip on that blood vessel because it’s easier to do, it’s quicker to do and it is innocuous.
This testimony, in my view, destroys the necessary foundation for application of the rule that loss of a surgical instrument in a body establishes, without more, an inference of negligence. Nor do the facts provide a foundation for application of the doctrine of res ipsa loquitur. As this Court stated in Joseph v. W. H. Groves Latter-Day Saints Hospital, 10 Utah 2d 94 , 348 P.2d 935 (1960):
[I]t is realized that res ipsa loquitur has been applied in various fields where an injury occurs which is not to be expected if proper standards of care and skill are observed. But this is done only with caution, particularly in the medical field because of the realization that many aspects of the treatment of human ills cannot yet be regarded as exact science and a bad result may obtain even though recognized standards of care and skill are employed. [10 Utah 2d at 99, 348 P.2d at 938 .] [Emphasis added.]
I recognize that there is a ring of common sense to the proposition that leaving foreign objects in a person constitutes negligence, see Fredrickson v. Maw, 119 Utah 385 , 227 P.2d 772 (1951), but neither justice nor common sense are enhanced by the mechanistic application of a rule of law to a fact situation that is only superficially related to the type of situation the rule was intended to govern. In this case, I cannot see how a jury could possibly find negligence in light of Dr. Hicken’s testimony and in the absence of any contrary expert testimony. I think the trial judge was right in directing a verdict on this issue.
I concur, however, with the majority that the defendants had a duty to inform the plaintiff of the fact that a foreign object had been left in her body.