Ault v. Hall

• Decision Date: 19 December 1928
• Docket Number: 21165
• Citation: 119 Ohio St. 422,164 N.E. 518
• Parties: Ault v. Hall.
• Court: Ohio Supreme Court

164 N.E. 518

119 Ohio St. 422

Ault v. Hall.

No. 21165

Supreme Court of Ohio

December 19, 1928

Negligence - Presumption not raised by injury - Proof of proximate cause necessary - Customary methods or conduct not conclusive test for determining negligence - Dangerous methods not established as safe by long continued use - Charge to jury erroneous - Surgeon relying upon custom of sponge count by nurse not entitled to verdict - Due care not exercised by following usual practice of sponge count - Surgeon held to ordinary skill, care and diligence of profession - Failure to remove sponges, before closing abdominal incision, prima facie negligence.

1. A presumption of negligence is never indulged from the mere fact of injury, but the burden of proof is upon the plaintiff to prove the negligence of the defendant and that such negligence is a proximate cause of injury and damage.

2. In an action for negligence, conformity to custom or usage is a matter proper to be submitted to the jury for its consideration in determining whether or not ordinary care has been exercised.

3. Customary methods or conduct do not furnish a test which is conclusive or controlling on the question of negligence or fix a standard by which negligence is to be gauged, but conformity thereto is a circumstance to be weighed and considered with other circumstances in determining whether or not ordinary care has been exercised.

4. Methods employed in any trade, business or profession however long continued, cannot avail to establish as safe in law that which is dangerous in fact.

5. Where a surgeon in the course of an abdominal operation uses sponges and fails to remove one of them from the cavity before closing the incision, it is error for the trial court to instruct the jury that if the custom of counting by nurses was reasonable and defendant followed and relied upon it, the verdict should be in his favor.

6. The duty of a surgeon to exercise due care to ascertain that no foreign substance is left in the abdomen of one operated on is not conclusively shown to have been performed by evidence that he followed the usual practice and custom of surgeons of relying on a count by the nurses of sponges used in the course of such operation.

7. In an action against a surgeon for malpractice the jury should he instructed that the plaintiff must show by a preponderance of the evidence and the jury must find that the defendant in the performance of his service either did some particular thing or things that physicians and surgeons of ordinary skill, care and diligence would not have done under the same or similar circumstances or that the defendant failed or omitted to do some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would have done under the same or similar circumstances.

8. In the performance of a surgical operation where an incision is made in the abdomen and where surgical sponges are used, the removal of such sponges is a part of the operation itself and a failure to remove such sponges before the incision is finally closed is prima facie evidence of negligence.

The facts are stated in the opinion.

Mr Jacob De Kaiser and Mr. M. C. Harrison, for plaintiff in error.

Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, Mr. L. B. Davenport, and Mr. G. P. Bickford, for defendant in error.

MARSHALL C. J.

This action originated in the court of common pleas of Cuyahoga county as a suit for damages for malpractice. Mrs. Ault, a woman of about 74 years, consulted Dr. Hall, and her ailment was diagnosed by him as requiring the surgical removal of her gall bladder. She accordingly contracted with him for such operation, and the sur- geon selected St. John's Hospital in Cleveland as the place of operating, he being a member of the staff in that institution. Mrs. Ault had no choice in the selection of the institution or the surgeon's assistants, but made no objection thereto. The operation took place May 25, 1925. It being an abdominal operation, numerous surgical sponges were employed for wiping and walling off the abdominal cavity from possible infections, and for packing off intestines and arresting hemorrhages. At the conclusion of the operation the incision was closed, and one of the sponges was permitted to remain in the abdomen. The incision did not heal, and the suppuration became more pronounced, and the incision was repeatedly cauterized, until nearly eight weeks. Later it was discovered that the trouble was due to a sponge. On removal of the sponge it was found that it had rotted a hole in the stomach, so that when the sponge was removed food taken into the stomach seeped out through the hole in the stomach through the open wound. Further treatment followed during which the patient was kept alive by rectal injections of food and subcutaneous injections of moisture until the hole in the stomach sufficiently healed to retain food. As a result the patient has endured great suffering and it is claimed that her health has been permanently impaired.

The testimony adduced in the course of the trial shows that the surgeon had a first and second assistant surgeon and three nurses, each of whom was subject to his orders and control; that in the course of every such operation it is necessary to use surgical sponges consisting of long strips of gauze; that it is the approved practice to require a pair of for- ceps, called a hemostat, to be attached to every sponge left in the abdomen during the operation; that wiping sponges do not under the approved practice require a hemostat to be attached, because they are removed from the abdomen as soon as they are used; that during the operation a wiping sponge was in fact placed within plaintiff's abdomen and allowed to remain there without a hemostat attached.

Dr. Hall in his answer admitted performing the operation, but claimed that he had at all times exercised due and proper care. As further defensive matter he alleged that it is the custom and practice generally among surgeons, where an abdominal or major operation is to be performed, to have present a house surgeon, a first assistant surgeon, an anesthetist, a table nurse, a sponge nurse, and an instrument nurse, and that this custom and practice prevails generally in the locality of Cleveland and was the practice and custom in St. John's Hospital. He further alleged that all said employees were present in the operating room and assisted in the operation. He further alleged that it is the duty of the "sponge nurse" to correctly count the number of operative sponges used, and that it is the custom of surgeons in hospitals generally in Cleveland, Ohio, and particularly in St. John's Hospital, to rely upon the sponge count so reported by the sponge nurse, and that he did in fact rely upon her count and thereby followed the general practice of surgeons, and thereupon closed the incision. He further alleged that neither the anesthetist, the assistant surgeons, nor any of the nurses, were employed by or selected by him.

There was very little if any contradiction in the testimony, and for the purposes of this discussion we will assume that all the foregoing matters were definitely established. All witnesses agreed that a large sponge used for packing or walling off or stanching blood or pus should have a hemostat attached, which would be left hanging over the outside of the body, and that such precaution would be absolute insurance against a sponge being left in the body. They likewise agreed that a wiping sponge need not have such attachment, because such a sponge is never left in the abdomen beyond the period of its immediate use. This particular sponge was of gauze material several inches wide and two or three feet long, and was large enough to have been employed either as a wiping sponge or for packing.

It is self-evident that some one was guilty of negligence. If the sponge was used for packing purposes the usual precaution of attaching a hemostat was omitted. If it was used for wiping purposes the surgeon or assistance surgeon who used it did not immediately remove it. The trial did not establish who was the negligent party, but it must have been Dr. Hall, or one or the other of his two assistants, and the only testimony on the point was that of Dr. RaIl, who testifies as follows:

"Now I could not know whether it was put in through one of my assistants under an emergency or not. I am unable to say. I remember that we had quite a little difficulty in controlling hemorrhage and in the stress of that moment my assistants might have done it. I might have done it."

Not to remove a wiping sponge from the cavity immediately after its use, or, if left in, not to attach c hemostat, would be evidence of a want of ordinary care. Whether the deposit of this particular sponge was for the one purpose or the other, and whether or not a hemostat was attached, is not the ultimate inquiry. It is only important as bearing upon the question whether the precautions which good surgery dictates were employed to prevent the sponge being overlooked. The negligence and injury being established, the inquiry relates to the legal responsibility of Dr. Hall.

We need not determine in this particular case whether the action sounds in contract or in tort. The duty and the responsibility of Dr. Hall do not depend upon any such determination. There was an express contract to perform an operation. This express contract carried the implied obligations that Dr. Hall would select the place of its performance and that fie would be aided by necessary assistants. Superimposed upon these express and implied provisions, the law implies a duty to exercise the ordinary care and skill of his profession in the light of the modern advancement...