Brannon v. Wood

• Decision Date: 23 August 1968
• Citation: 251 Or. 349,444 P.2d 558
• Parties: Burton BRANNON, Appellant, v. James A. WOOD et al., Respondents.
• Court: Oregon Supreme Court

Page 558

444 P.2d 558

251 Or. 349

Burton BRANNON, Appellant, v. James A. WOOD et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 4, 1968.

Decided Aug. 23, 1968.

Gerald H. Robinson, Portland, argued the cause for appellant. With him on the briefs were Lent, York & Paulson and Charles Paulson, Portland.

Curtis W. Cutsforth, Portland, argued the cause for respondent James A. Wood. With him on the brief were King, Miller, Anderson, Nash & Yerke, Portland.

Bruce Spaulding, Portland, argued the cause for respondent The Portland Clinic. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before PERRY, C.J., and SLOAN, O'CONNELL, DENECKE, HOLMAN, LUSK and RODMAN, JJ.

RODMAN, Justice (Pro Tempore).

The plaintiff has appealed from an adverse judgment in a personal injury action. In 1964, he was admitted into St. Vincent Hospital for the purpose of having the defendant James A. Wood, a thoracic surgeon, remove a posterior mediastinal tumor from his chest. During the course of the operation it was determined that the tumor was a meningocele. A meningocele is a pouching out of a portion of the covering membrane (the dura) of the spinal cord so that the fluid around the spinal cord, which is held in by the dura, tends to force out the membrane in the same way that a weak spot in an inner tube is forced out in a bubble. The meningocele protruded through an opening (called a foramen) in the plaintiff's spinal column into his chest cavity. The tumor, which was about the size of a small lemon or large egg, was excised, the patient's chest closed and he was taken to the recovery room.

Several hours later it was noted that the plaintiff was hemorrhaging severely. He was returned to surgery and the incision reopened in order to locate the source of bleeding and stop it. Dr. Wood determined that the bleeding was coming up through the foramen from which the meningocele had been removed. In an attempt to stop the hemorrhaging, he used silver Cushing clips to clamp off bleeding veins and applied Gelfoam over the source of the bleeding. Gelfoam is a type of gelatin which will facilitate clotting and is eventually absorbed by the body. When the Gelfoam was removed after a few minutes the bleeding began again at a rapid rate. He next inserted a sponge into the foramen with forceps, but this too was ineffectual. In the meantime, a blood transfusion had been commenced to offset a critical loss of blood.

When these measures failed, Dr. Wood packed Surgicel in through the foramen until the bleeding had stopped. Surgicel is a cellulose substance which is very hemostatic and similar in function to Gelfoam. It swells 10 to 20 per cent when exposed to liquids and will eventually dissolve in the body. After observing that the bleeding had stopped, the defendant Wood again closed the chest opening and returned the plaintiff to the recovery room.

In the recovery room it was discovered that the lower portion of Brannon's body was paralyzed. He was again returned to surgery and a neurosurgeon performed a laminectomy through the patient's back and removed the Surgicel. This failed to relieve the paralysis and the plaintiff remains a paraplegic with complete loss of feeling and motion from the umbilicus downward. There were other medical procedures involved in the case and the trial consisted largely of medical testimony; however, the statement above is sufficient to dispose of the issues that have been raised on appeal.

In his complaint the plaintiff set forth various specifications of negligence against the defendants. Before the case was submitted to the jury, the plaintiff withdrew all specifications of negligence except the following:

(1) In placing and leaving packing against plaintiff's spinal cord in such a position that it was likely to impinge upon plaintiff's spinal cord.

(2) In failing to warn plaintiff of the known and inherent risks, dangers and possible consequences of the planned surgical procedure, particularly the risk of massive hemorrhage, cord compression from hemorrhage, rupture of adjacent blood vessels, and spinal cord compression.

It was not disputed by the defendants that the plaintiff had suffered permanent paralysis and that it was caused by compression of the spinal cord by the Surgicel packed within the spinal canal. The defendants, other than Dr. Wood, were partners in The Portland Clinic. Dr. Wood was an associate of that firm and the only liability of the other defendants would arise from that relationship.

The case was submitted to the jury upon the two specifications of negligence set forth above, and the jury returned a verdict for the defendants.

Plaintiff's first assignment of error is that the court erred in failing to give a requested instruction on Res ipsa loquitur. ¹ The second assignment of error is related to the first; it is that the court erred in giving the usual instruction that the mere fact that an injury was sustained is not evidence of negligence, since, unless qualified, that would not be a correct statement of the law in a case involving the doctrine of Res ipsa loquitur. The plaintiff does not contend that Res ipsa loquitur applies to the specification of negligence charging the failure to warn the plaintiff of the risks and dangers of the surgery. Since the jury found against the plaintiff on that specification, we will not consider it further.

The lower court did not err in refusing to give plaintiff's requested instruction on Res ipsa loquitur. Likewise, there is no merit to the plaintiff's second assignment of error as the only fault claimed is that the instruction is inappropriate in a Res ipsa loquitur case.

In Mayor v. Dowsett, 240 Or. 196, 400 P.2d 234 (1965), this court held that, subject to some limitations not of moment in this case, the doctrine of Res ipsa loquitur may be applied in a medical malpractice case just as in any other negligence action. The elements which must be present in order for the doctrine to be available are:

"* * * (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. * * * ' Prosser, Law of Torts (2d ed.) 201--202, § 42.' 240 Or. at 214, 400 P.2d at 242.

There is no question but that the plaintiff's injury was caused by an agency or instrumentality within the exclusive control of the defendants. The plaintiff alleged and proved that his paralysis was caused by the act of Dr. Wood placing Surgicel in such a position that it impinged upon his spinal cord. None of the seven doctors who testified for the defendants suggested that the injury was caused in any other way. The plaintiff was unconscious throughout the operation, and, of course, no action on his part contributed to the paralysis. If the jury could find that an accident of this kind does not ordinarily occur in the absence of negligence, then the case would fall within the doctrine of Res ipsa loquitur.

Courts are not in agreement as to the effect on Res ipsa loquitur of pleading specific allegations of negligence. 38 Am.Jur. Negligence § 305 at 1001--1002, sets out the several rules:

'There is a sharp conflict of authority as to whether pleading a specific act of negligence waives the pleader's right to rely upon the doctrine of res ipsa loquitur. Some jurisdictions adopt the view that if the case is a proper one for the application of the doctrine, the plaintiff, by pleading the particular cause of the accident, in no wise loses his right to rely upon the doctrine, and any specific allegations of negligence in the complaint are wholly immaterial, provided, of course, the complaint otherwise contains a general allegation of negligence. Even if he fails to prove the specific allegations, the presumption is still available. On the other hand, there are cases which apparently go to the extent of holding that the plaintiff, by merely alleging specific acts of negligence, precludes any right whatever to rely upon the doctrine; at least the language used by the court seems to admit of no other interpretation. Another class of cases holds that where a plaintiff makes specific allegations of negligence, he must rely for his recovery upon such specific acts of negligence, and cannot recover for any other negligent acts; but he is not deprived of the benefit of the doctrine of res ipsa loquitur to establish his specific acts of negligence. In other words, by the mere allegation of a specific act of negligence, he is not deprived of the benefit of the doctrine so far as the specific act of negligence itself is concerned. The application of the doctrine is limited to the establishment of the particular acts of negligence alleged, just as any proof which the plaintiff might seek to introduce would be limited to the establishment of the negligence alleged * * *.'

This court has followed the rule stated last in the above text. Boyd v. Portland Electric Co., 40 Or. 126, 66 P. 576, 57 L.R.A. 619 (1902); Boyd v. Portland Electric Co., 41 Or. 336, 68 P. 810 (1902); Short v. D. R. B. Lggoing Co., 192 Or. 383, 232 P.2d 70, 235 P.2d 340 (1951).

The application of this principle is illustrated in the second Boyd case wherein the plaintiff had been burned by an electrical wire of the defendant which had broken and fallen on the ground:

'* * * But if the plaintiff chooses to narrow and circumscribe his cause of action, and specify and particularize the cause of the parting of the wires, and its consequent suspension upon the street, he thereby limits the inquiry to the cause designated, and none other is pertinent or can be entertained at the trial;...