Aderhold v. Stewart

• Decision Date: 30 April 1935
• Docket Number: Case Number: 24291
• Parties: ADERHOLD v. STEWART
• Court: Oklahoma Supreme Court

1935 OK 479

46 P.2d 340

172 Okla. 72

ADERHOLD v. STEWART

Case Number: 24291

Supreme Court of Oklahoma

Decided: April 30, 1935

Syllabus

¶0 1. PHYSICIANS AND SURGEONS - Action Against Surgeon for Injuries Caused by Negligent Operation - Petition Held not Demurrable.

A petition which states in substance that a surgeon, for a valuable consideration, operated on a woman for appendicitis and during the operation sewed up a sponge in the body of the patient; that this constituted negligence which was the proximate cause of her injury, is not demurrable on the ground of insufficiency.

2. SAME - Question of Negligence in Failing to Remove Sponge Before Incision Closed.

The fact that a surgeon adopted and used the recognized and customary method of keeping account of the sponges used during an operation, will not afford a complete shield from liability, if in fact a sponge was left in the patient's body. The real test is whether he and the nurses, acting under his authority, exercised ordinary care in keeping track of the sponges and seeing to it that they were all removed before the incision was closed.

3. SAME - Question for Jury Under Evidence.

Evidence examined, and held sufficient to go to the jury on the question of whether a sponge was, in fact, left in the body of the patient by the operating surgeon, and if so, whether or not this constituted, under all the evidence in the case, a failure to exercise ordinary care in said operation.

4. SAME - Surgeon's Responsibility for Acts of Nurses and Other Helpers.

A surgeon is responsibile for the acts of negligence of nurses and other helpers employed and directed by him in connection with an operation.

5. SAME - Instruction on Measure of Damages Held not Erroneous.

It was not error to instruct the jury that if they found the defendant was negligent in leaving a sponge in the body of the plaintiff, they should find and assess the amount of her damages, if any, which she suffered by reason of said negligence, in addition to what she would naturally have suffered as the result of said operation.

6. EVIDENCE - Testimony of Layman as to Commonplace Conditions and Actions of Surgeon and Nurse in Operation.

A layman may testify as to commonplace conditions and commonplace actions of a surgeon and nurse, in connection with an operation.

7. APPEAL AND ERROR - Trial - Hysterical Conduct of Plaintiff on Witness Stand, as Ground for Mistrial - Discretion of Trial Court.

Whether or not the alleged misconduct of the plaintiff in becoming hysterical and crying while on the witness stand is prejudicial to the rights of the defendant and warrants a declaration of mistrial, is a matter in the sound discretion of the trial court and, in the absence of evidence of abuse of that discretion, its ruling thereon will not be disturbed.

8. APPEAL AND ERROR - Verdict of Damages Against Surgeon for Negligent Operation Held Excessive and Remittitur Required.

Record examined, and held, that verdict of $9,896 is excessive upon the facts proven, and that the judgment should be reversed and new trial granted, unless a remittitur is filed for all in excess of $5,000 and interest thereon from date of judgment.

Appeal from District Court, Canadian County; Lucius Babcock, Judge.

Action by Bernice L. Stewart against Dr. T. M. Aderhold et al. Judgment for plaintiff, and named defendant appeals. Modified and affirmed.

James C. Cheek and Frank E. Lee, for plaintiff in error.

Ledbetter, Stuart, Bell & Ledbetter and Minton & Minton, for defendant in error.

PER CURIAM.

¶1 Bernice L. Stewart commenced this action against Dr. T.M. Aderhold and the El Reno Sanitarium and Training School for Nurses, a corporation, for damages alleged to have been suffered by reason of the negligence of the defendant in leaving a piece, of gauze, known as a surgical sponge, in the body of the plaintiff when the plaintiff was operated on by the defendants for appendicitis. The action was dismissed by plaintiff as to defendant El Reno Sanitarium and Training School for Nurses.

¶2 The case proceeded to trial against Dr. T.M. Aderhold and resulted in a verdict for plaintiff in the sum of $9,896, upon which judgment was entered, and from which Dr. Aderhold appeals.

¶3 The parties will be referred to herein as plaintiff and defendant, as in the court below.

¶4 The evidence in this case discloses that the plaintiff was brought to the hospital of defendant, late in the afternoon of June 19, 1931; that the defendant made an examination of her condition and advised an immediate operation. He then proceeded to operate, with the assistance of two nurses, for appendicitis; that during this operation he discovered that the patient had gallstones, which should be removed; that he made a second incision several inches above the first and removed the gallstones; that he placed a drainage in the lower incision, which was for the removal of the appendix, and treated the patient in the hospital for two weeks, when he removed the rubber tube and gauze used in the drainage and permitted the patient to return to her home, some 35 miles away.

¶5 After the patient returned to her home, the upper wound, for gallstones, healed quickly and normally, while the lower wound continued to discharge pus and did not heal.

¶6 The patient returned to Dr. Aderhold on several occasions for further treatment, and on September 2d, he examined the wound and made a probe with his instruments and said he found no foreign object in the wound. The patient returned to her home, where she was treated by a local physician, who dressed the wound several times.

¶7 The plaintiff further testified that under the instruction of Dr. Aderhold her husband dressed the wound two or three times daily; that she suffered constant pain and the wound continued to discharge pus, until she returned to Dr. Aderhold on December 30, 1931: that on this occasion the defendant examined the wound and discovered the frazzled edge of a gauze sponge; he applied his forceps and pulled from the wound a piece of gauze, said by the defendant to be two inches square and by the plaintiff to be four inches square; that in pulling the gauze from the wound, the plaintiff cried out in great anguish that the doctor was killing her. The defendant threw this piece of gauze in the stove. The plaintiff testified that she asked the doctor how that happened to be in there, and that he said, "It was left in there," and made no further comment. The patient then returned to her home and the wound healed over within about two weeks.

¶8 The defendant testified that he did not leave any sponge in the body of the plaintiff at the time of the operation; that he did not find any sponge either in the wound or the body cavity at the time he made the probe on September 2d, and that the sponge pulled from the wound by him on December 30th was not the kind of sponge that he used at the operation; that he adopted the recognized and customary method of keeping count of sponges used in an operation; that this consisted of counting the sponges when they were brought into the operating room, instructing a nurse to keep count of the sponges as they were inserted in the incision and as they were taken out, and again counting the sponges at the end of the operation. He said that these counts showed that there were no sponges left in the body cavity. The nurses assisting in the operation testified substantially to the same facts.

¶9 The plaintiff testified that neither she nor her husband nor any one else had placed any sponge or gauze in the wound in question, at any time between the date of the operation and the day the defendant removed the gauze from the wound on December 30th.

¶10 1. Complaint is made that the petition fails to state a cause of action. In substance, the petition states that the defendant for a valuable consideration agreed to operate on plaintiff; that in the course of the operation he left a gauze sponge four inches square in the body of the plaintiff; that this sponge remained in plaintiff's body from June 19th until December 30th, when it was removed from the wound by defendant; that on account of these acts the defendant was guilty of negligence, which negligence was the proximate cause of the injury to plaintiff. The petition then described the nature of her injuries and resultant suffering and asked for damages in the sum of $25,000. The defendant contends that "the leaving of the gauze within the body is not negligence per se, nor prima facie evidence of negligence"; that "the doing of any act in the course of a surgical operation is never to be considered a negligent act unless it be contrary to the approved and accepted method of procedure by experts in the profession." He contends, further, that the petition, in addition to stating the fact that the sponge was left in the patient's body, should go further and say, in substance, "that such act upon his part was negligence in that same was contrary to the recognized, accepted method of performing this operation." Under our rule of pleading, that the petition must contain "a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition" (sec. 198, O. S. 1931), and the definition of negligence, which is, "* * * a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns" (sec. 1783, O. S. 1931), we hold that this petition states a cause of action, under the rules of pleading negligence in ordinary cases, and we do, not find that any different rule is required in pleading negligence against a surgeon.

¶11 2, 3, 4. The defendant contends that there is not sufficient evidence to take this case to the jury, and that defendant's, demurrer to plaintiff's evidence should have been sustained, and argues that if the defendant adopted and used the recognized and customary method of keeping track of the sponges, he could not be...