Nazar v. Branham, No. 2004-SC-001015-DG.
| Citation | 291 S.W.3d 599 |
| Decision Date | 23 April 2009 |
| Docket Number | No. 2004-SC-001015-DG.,No. 2005-SC-000834-DG. |
| Parties | Gregory B. NAZAR, M.D., et al., Appellants/Cross-Appellees, v. Sheila BRANHAM, Executrix of the Estate of Roe Branham, Appellee/Cross-Appellant. |
| Court | United States State Supreme Court (Kentucky) |
This is an appeal from a defense verdict in a medical malpractice action. Appellee/Cross-Appellant, Sheila Branham as Executrix of the Estate of Roe Branham [hereinafter "Branham"] alleges that Appellant/Cross-Appellee, Dr. Gregory B. Nazar [hereinafter "Dr. Nazar"] committed medical malpractice by failing to remove an object from Roe Branham's scalp following surgery. The alleged professional negligence occurred at Norton Audubon Hospital [hereinafter "Norton"] on February 27, 2000 during an operation in which a malignant tumor was removed from Branham's brain. The surgery was largely a success, with nearly 95-100 percent of the tumor having been extracted. Following surgery, however, Branham complained of pain in his head, which was initially dismissed as an attendant aspect of his surgery. When the pain continued for several weeks Branham sought further medical attention. Tests revealed that a Durahook, a small, metallic object used to hold soft tissues apart during an operation, was left in Branham's scalp. On August 10, 2000, the Durahook was surgically removed from Branham's scalp without further complications. Branham incurred $11,900.00 in medical expenses as a result of the surgery.
After his second surgery, Branham filed suit in Jefferson Circuit Court, naming Dr. Nazar, Dr. Nazar's medical practice, and Norton as Defendants. Branham alleged that the Defendants had committed medical malpractice by failing to remove the Durahook from his scalp after surgery. He further alleged that both Dr. Nazar and Norton were vicariously liable for the nursing staffs failure to remove the Durahook from his scalp. Following discovery, Branham settled his claims against Norton and the trial court entered an agreed order dismissing them, while preserving Branham's claims against Dr. Nazar.
Shortly after this settlement, Branham moved for summary judgment against Dr. Nazar, arguing that he was negligent as a matter of law for having left the hook in his scalp during surgery. In the alternative, Branham argued that Dr. Nazar was vicariously liable for the failure of the nursing staff to remove the hook. In opposing Branham's motion, Dr. Nazar presented affidavits from two experts: Harold Smith, M.D., a neurosurgeon, and Susan Howe, R.N., a surgical nurse. Both witnesses stated that Dr. Nazar had satisfied the applicable standard of care, even though the Durahook remained in Branham's scalp following surgery. As a result, the trial court denied Branham's dispositive motion.
At trial, Dr. Nazar testified that he placed the hooks in Branham's scalp and was supposed to remove them. Dr. Nazar also stated, however, that he did not count the hooks himself because it was general practice for the nursing staff to do so. Dr. Nazar further testified that he had no reason to assume that any of the Durahooks had been left in Branham's scalp. Durahooks are placed in the patient's scalp and fastened with a rubber band under the operating table. If the fastening comes loose, Durahooks can slide under the tissue and become concealed during surgery. Because a towel is placed over the operating area, Dr. Nazar was unable to see if a Durahook became unfastened. Furthermore, Dr. Nazar believed that the Durahooks were included in the nurses' "sharps" count, and at the end of Branham's surgery, he relied upon the nurses' assurance that all of the sharps had been removed.
Nurse Susan Howe, an expert witness called by Dr. Nazar, testified that it was the nursing staffs duty, and not the surgeon's, to ensure that all "sharps" were accounted for after surgery. In her opinion, the nurses should have counted the hooks as sharps despite the fact that they were not explicitly mentioned in Norton's hospital protocol. Howe also testified that she knew of no customs or practices which required surgeons to count sharps during or after surgery. Thus, Howe concluded that Dr. Nazar reasonably relied on the nurses and scrub technician to count the Durahooks during Branham's surgery.
Dr. Nazar's second expert, Dr. Harold Smith, testified that the nurses should have counted the Durahooks as sharps because it was typically the duty of the nursing staff to account for sharps after surgery. Dr. Smith, therefore, opined that Dr. Nazar was not responsible for counting the sharps and was justified in relying on the nursing staff to conduct the count.
Nurse Anna Ball and surgical technician Meshon Daniels, who assisted Dr. Nazar during the surgery, testified that they did not count the hooks because hospital policy did not require it. Norton's protocol listed several items which were specified as "sharps," including: "needles, blades, bovie tips, safety pins, injectables," but not Durahooks. Ms. Ball further testified, however, that if she had counted items and discovered that one was missing, she would have promptly notified Dr. Nazar so that he and the nursing staff could search for the missing item until it was located.
Following the presentation of this evidence, the trial court denied the parties' respective motions for directed verdict. The trial court also refused to instruct the jury on Branham's vicarious liability theory against Dr. Nazar. The jury then deliberated and returned a verdict in favor of Dr. Nazar, finding that he had not breached the standard of care.
On appeal, the Court of Appeals reluctantly reversed the trial court's denial of Branham's motion for summary judgment. See Branham v. Nazar, No.2003-CA-001110-MR, 2004 WL 2367143, at *2 (October 22, 2004). An en banc Court of Appeals concluded that under Laws v. Harter, 534 S.W.2d 449 (Ky.1975), Dr. Nazar was negligent as a matter of law for having left the Durahook in Branham's scalp. As such, summary judgment should have been granted as to Dr. Nazar's liability and the jury should only have addressed the question of damages. Id. at 16-17. From this opinion, Dr. Nazar filed a motion for discretionary review, asking this Court to reinstate the jury verdict in his favor. Branham filed a cross-motion for discretionary review on the vicarious liability issue. We granted both motions.
In defense of the Court of Appeals' decision, Branham argues that under Laws v. Harter, 534 S.W.2d 449 (Ky.1975), Dr. Nazar was negligent as a matter of law for permitting the Durahook to remain in his scalp after surgery. In Laws, a surgical sponge was left in the plaintiff following thoracic surgery performed by the defendant surgeon. Id. at 450. Before the incision in the plaintiffs body was closed, a nurse's count revealed that one of the sponges was missing. Id. After searching the operating room for an extended period of time, the sponge still could not be located. Id. The surgeon decided that under the circumstances it would be best to close the patient despite the fact that the sponge was missing. Id. Following the surgery, X-rays revealed that the missing sponge remained in the plaintiffs body. Id.
Upon discovering the sponge, the plaintiff sued the surgeon, alleging that he was negligent as a matter of law. Id. The surgeon argued that he had satisfied the standard of care of a reasonably prudent doctor by deciding to close the patient, despite the missing sponge. Id. The former Court of Appeals, however, was not convinced, and held that the reasonableness of the doctor's decision was not relevant. Id. at 450-51. Instead, the Court held that the surgeon was negligent per se because "[h]owever exemplary the care given to appellant after discovering that a sponge was missing, the fact remains that when the incision through the diaphragm was closed a sponge was left in the abdomen." Id. at 450. Accordingly, the Court remanded to the trial court for a new trial addressing only the issue of plaintiffs damages. Id. at 451-52.
Dr. Nazar argues that despite Laws, retained foreign object cases are generally resolved under a res ipsa loquitur standard under Kentucky law. Under this standard, juries may—but are not required to—infer negligence from the fact that a surgical item was left in a patient's body. While the retained foreign object is evidence of negligence, the jury is free to determine the ultimate issue of the surgeon's liability from the evidence presented at trial. In support of his argument, Dr. Nazar relies upon Chalothorn v. Meade, 15 S.W.3d 391 (Ky.App.1999), where the Court of Appeals reversed a trial court order holding a doctor negligent as a matter of law. In Chalothorn, the plaintiff required a cesarean section to deliver her baby. Id. at 392. After the baby was delivered, the nurse informed the doctor that one surgical sponge was missing. Id. When a search revealed that a sponge was located on the baby's body in the nursery, a nurse told the doctor that the count was correct and the doctor closed the incision in the plaintiffs body. Id. Later, it was discovered that what was believed to be a sponge on the baby's body was not a sponge at all and that in fact one...
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