Branham v. Nazar, No. 2003-CA-001110-MR (KY 10/22/2004)

• Decision Date: 22 October 2004
• Docket Number: No. 2003-CA-001110-MR.,2003-CA-001110-MR.
• Parties: ROE BRANHAM, Appellant v. GREGORY B. NAZAR, M.D., AND GREGORY B. NAZAR, P.S.C., Appellees.
• Court: United States State Supreme Court — District of Kentucky

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ROE BRANHAM, Appellant v. GREGORY B. NAZAR, M.D., AND GREGORY B. NAZAR, P.S.C., Appellees.

No. 2003-CA-001110-MR.

Court of Appeals of Kentucky.

October 22, 2004.

Appeal from Jefferson Circuit Court, Honorable Stephen K. Mershon, Judge, Civil Action No. 00-CI-006591.

T. Wesley Faulkner, Kevin C. Burke, Louisville, Kentucky, Brief for Appellant.

Kevin C. Burke, Louisville, Kentucky, Oral Argument for Appellant.

Gerald R. Toner, Cathleen C. Palmer, Louisville, Kentucky, Brief for Appellees.

Gerald R. Toner, Louisville, Kentucky, Oral Argument for Appellee.

Before: THE FULL COURT SITTING EN BANC.

OPINION

MINTON, JUDGE:

Roe Branham appeals from a judgment of the Jefferson Circuit Court which dismissed Branham's complaint against Dr. Gregory B. Nazar, M.D., and Gregory B. Nazar, P.S.C., after the jury found that Dr. Nazar had not breached the standard of care while surgically removing Branham's brain tumor. Having concluded that this Court's previous decision in Chalothorn v. Meade¹ incorrectly interpreted Laws v. Harter,² a case decided by Kentucky's highest Court, we sit en banc and overrule Chalothorn. Having further concluded that Branham was entitled to judgment as a matter of law with respect to the issue of Dr. Nazar's liability, we reverse and remand for further proceedings.

Branham filed a complaint in the Jefferson Circuit Court naming Galen of Kentucky, Inc., d/b/a Norton Audubon Hospital, Dr. Nazar, and Dr. Nazar's medical practice as defendants. In his complaint, Branham alleged that Dr. Nazar, a neurosurgeon, negligently failed to remove a Dura Hook³ from inside his scalp during his surgery and that Norton Audubon, "through its ostensible agents and employees, including but not limited to" Dr. Nazar, acted negligently in its treatment and care of Branham. Branham sought damages for his past and future medical expenses, past and future pain and suffering, and impairment of his power to earn money. After a significant amount of discovery had taken place, the trial court entered an agreed order dismissing all of Branham's claims against Norton Audubon, with prejudice, while preserving Branham's claims against Dr. Nazar and the P.S.C.⁴

Branham filed a motion for summary judgment as to Dr. Nazar's liability. He argued that Dr. Nazar was negligent as a matter of law for failing to remove the Dura Hook which was left inside his scalp. In addition, Branham claimed that if it were determined that the scrub technician and/or the operating room nurses were responsible for ensuring that no Dura Hooks were left inside Branham's scalp, Dr. Nazar could still be held liable under the doctrine of respondeat superior. Branham argued that the scrub technician and operating room nurses were Dr. Nazar's "borrowed servants" and that any negligence on their part should, therefore, be imputed to Dr. Nazar. The trial court denied Branham's motion for summary judgment, and the case proceeded to trial.

During trial, the following evidence was presented. Branham visited Norton Audubon complaining of severe head pain. Subsequent testing revealed that Branham had a malignant brain tumor, which Dr. Nazar surgically removed. There is no dispute that the surgery was a success and that 95-100 percent of the tumor was removed.

However, routine follow-up tests revealed that a Dura Hook had been unintentionally left inside Branham's scalp during the surgery. According to trial testimony, several Dura Hooks had been used during Branham's surgery to retract his scalp and temporalis muscle in order to provide Dr. Nazar with an open view of the tumor.

Anna Ball, R.N., was the circulating nurse in the operating room on the day of Branham's initial surgery. Nurse Ball, along with Meshorn Daniels, a surgical technician, was assigned by Norton Audubon to assist Dr. Nazar during Branham's brain surgery. Nurse Ball testified that on the day of Branham's surgery, she and Daniels performed both preoperative and postoperative counts of the "sharps" that were used during Branham's surgery. The "sharps counts" were conducted pursuant to Norton Audubon's written "Sharps Count Protocol," which required circulating nurses and surgical technicians to" count each sharp (needles, blades, bovie tips, safety pins, injectables)" before and after surgery.

Nurse Ball and Daniels both testified that during Branham's surgery, the Dura Hooks were never counted since, in their opinion, Norton Audubon's written protocol did not require them to count Dura Hooks as "sharps."⁵ In addition, Dr. Nazar testified that he did not count the Dura Hooks for Branham's surgery and that he had never counted Dura Hooks in any of his prior surgeries. However, Dr. Nazar stated that he assumed Nurse Ball and Daniels were counting the Dura Hooks as part of their routine duties.

Dr. Nazar testified that it was his responsi-bility to place the Dura Hooks into position on Branham's head and that it was his responsibility to remove the Dura Hooks upon the completion of the procedure. Dr. Nazar further stated that sometime during Branham's surgery, a string on one of the Dura Hooks came loose, leaving the Dura Hook embedded underneath Branham's scalp and temporalis muscle. Thus, according to Dr. Nazar, he could not see that particular Dura Hook and was, therefore, unaware that it was still inside Branham's scalp when it came time to close Branham's incision. However, since Nurse Ball and Surgical Technician Daniels had informed Dr. Nazar that the "sharps count" was correct, he assumed that all of the Dura Hooks had been removed from Branham's scalp. Unfortunately, when Dr. Nazar closed Branham's incision, one Dura Hook remained inside his scalp.

Dr. Nazar testified that routine follow-up tests revealed that one Dura Hook had, in fact, been left inside Branham's scalp.⁶ Accordingly, Dr. Nazar performed a second surgery on Branham and successfully removed the Dura Hook.

Following the presentation of evidence by both parties, Dr. Nazar and Branham each moved for directed verdicts which were denied by the trial court. In addition, the trial court denied Branham's request to include an instruction permitting the jury to find Dr. Nazar liable pursuant to the doctrine of respondeat superior. After hearing the evidence presented, the jury returned a verdict in favor of Dr. Nazar, finding that he had not breached the standard of care in his treatment of Branham. Consequently, the trial court entered a final judgment dismissing Branham's complaint against Dr. Nazar and the P.S.C., with prejudice. This appeal followed.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."⁷ In Paintsville Hospital Co. v. Rose,⁸ our Supreme Court held that for summary judgment to be proper, the movant must show that the nonmoving party cannot prevail under any circumstances. The Supreme Court has also stated that "the proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor."⁹ Since factual findings are not at issue, an appellate court need not defer to the trial court.¹⁰ "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor."¹¹

Branham first argues that the trial court erred by denying his motion for summary judgment with respect to the issue of Dr. Nazar's liability. Specifically, Branham claims that" a surgeon who inadvertently leaves a foreign object inside a patient is negligent as a matter of law." In response, Dr. Nazar claims that the issue of whether he failed to meet the standard of care in his treatment of Branham was a question of fact for the jury to decide. According to Dr. Nazar, since there was conflicting evidence with respect to whether he had met the standard of care, summary judgment in favor of Branham would have been improper.

In Laws v. Harter,¹² John Laws underwent thoracic surgery which was performed by Dr. John Harter. As part of this procedure, two incisions were made; an outer incision on Laws's chest cavity, and an inner incision on Laws's diaphragm. Before the inner incision on the diaphragm was closed, a sponge count was conducted and reported to Dr. Harter as being accurate. However, prior to the closure of the outer incision on the chest, a second sponge count revealed that one sponge was missing. After a search to find the missing sponge was unsuccessful, Dr. Harter concluded that it would be best to close Laws's chest at that time and to find the missing sponge later. X-rays taken at a later date revealed that the sponge was located in Laws's abdomen, underneath the inner incision of his diaphragm. Subsequently, the sponge was surgically removed.

In discussing Dr. Harter's liability with respect to the sponge that was left in Laws's abdomen, the former Court of Appeals stated:

We conclude that appellee, Harter, was negligent as a matter of law. It may be true, as he claims, that when it was discovered that a sponge was missing, he exercised to the highest degree all of the skills known to the medical profession in his attempt to locate the missing sponge, and having failed to locate it, the condition of the patient at that time may have been such that any reasonably prudent surgeon would have closed the patient.

However 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. The sponge count at that time failed to show any sponge missing but in truth one of the sponges was missing and the count was inaccurate. The failure...