Brossard v. Koop
| Decision Date | 02 July 1937 |
| Docket Number | 31172-31174. |
| Citation | 274 N.W. 241,200 Minn. 410 |
| Parties | BROSSARD v. KOOP et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Stearns County; Don M. Cameron, Judge.
Action by George Brossard against S. H. Koop, H. E. Koop, D. C O'Conner and another. From an order denying his separate motion for judgment notwithstanding a verdict for plaintiff each of the three-named defendants appeals separately.
Order affirmed as to the first two-named defendants, and reversed and remanded, with directions, as to the last-named defendant.
$3,000 for negligent failure of physicians to remove gauze pack from body in gall bladder operation held not excessive where patient incurred expense of $200 for treatment after suffering pain and continuous weakness as result of presence of pack in his body.
Syllabus by the Court .
1. In this action for malpractice, charging the three doctors who participated in a gall bladder operation upon plaintiff with negligently having left within his body a gauze pack, the court erred in not directing the jury to return a verdict for the doctor who administered the anaesthetic and in denying his motion for judgment notwithstanding the verdict.
2. The technical error in the charge, with respect to the burden of proof to show excuse for leaving a gauze pack within the wound of the operation, cannot be held prejudicial to the two doctors who made and closed the incision, for they admitted responsibility for its remaining there and attempted to show that an emergency necessitated such haste as excused the care otherwise required.
3. The verdict as reduced is held not excessive.
4. The rulings on admission of testimony are not considered prejudicial to defendants.
5. There was no misconduct in the final argument of plaintiff's counsel.
Cobb, Hoke, Benson, Krause & Faegre and Raymond A Scallen, all of Minneapolis, for appellant D. C. O'Conner.
Phillips & Sherwood, of St. Cloud, for appellant H. E. Koop.
Sexton, Mordaunt, Kennedy & Carroll, of St. Paul, for appellant S. H. Koop.
F. W. Russell, of Cold Springs, and Peter Ahles, of St. Cloud, for respondent.
Plaintiff sued for malpractice and secured a verdict against the three doctors who participated in an operation upon him for a diseased gall bladder. Each defendant appeals separately from the order denying his separate motion for judgment notwithstanding the verdict or a new trial.
The facts are these: Defendant O'Conner is a physician, but does no surgery. Defendants Koop are physicians who perform surgical operations. Plaintiff, about 50 years old, suffered from an acute attack of obstruction of the gall bladder duct and called O'Conner, of Eden Valley, on December 16, 1935. The doctor came and diagnosed the case correctly and advised an operation. The next day plaintiff agreed to submit to an operation and, on the 18th, the doctor took plaintiff in his car to Richmond, where there was a hospital, conducted by defendant S. H. Koop. Defendant H. E. Koop, located at Cold Springs, was summoned to take part, and in the afternoon, after further examination and consultation between the three doctors, the operation was undertaken. O'Conner administered the ether, and the surgical part was performed by H. E. Koop, assisted by S. H. Koop. Untoward conditions were encountered when the gall bladder was reached, and the patient passed into a state of shock. It was concluded that the operation could not be completed, and that the patient must be quickly put to bed and restoratives applied. Before that was done drainage must be established and the incision closed. In the operation packs or gauze sponges were used to keep back the unaffected organs from the field of operation, that is, from that part of the liver to which the gall bladder was attached, and also to absorb and remove blood and fluids found in the cavity reached by the incision. As speedily as possible drainage tubes were inserted and the incision sutured, the patient was removed from the operation table to a bed, and restoratives to bring him out of shock were successfully applied. After a 20-day stay at the hospital plaintiff left for his home. On January 30 O'Conner visited him and advised that he go to the hospital for examination, because the wound was discharging pus. Plaintiff did not go, and excused the failure for the reason he had lost confidence in the doctors. The wound did not heal, and plaintiff did not seem to recover and suffered pain. So, on March 4, he sought the services of Dr. Brigham at Watkins, who, on the 13th of that month, discovered a piece of gauze protruding from the wound, and presently extracted a pack, 10 inches by 15 inches, of several layers of gauze stitched together. A mass of pus was discharged. In a short time the discharge abated, and the wound healed. The services of Dr. Brigham were of the value of $200, according to his testimony. The hospital was a defendant, but a verdict was directed in its favor at the close of the evidence. A verdict in the sum of $4,000 was rendered against the other defendants. This was reduced by the court to $3,000.
We have reached the conclusion that the court erred in denying the motions of Dr. O'Conner for a directed verdict and for judgment non obstante. Dr. O'Conner was first called by plaintiff to treat him. But the record is undisputed that he advised plaintiff to go to the Richmond hospital for an operation. There is no intimation that Dr. O'Conner expressly contracted with plaintiff to cause it to be performed. It was taken for granted that the Drs. Koop brothers who practiced surgery, were to perform the operation, and that Dr. O'Conner should administer the anaesthetic. The villages at which each of these defendants practiced are small, and only in Richmond, where there was a hospital, could the operation well be performed. The only claim of malpractice made by the complaint and sought to be established by the evidence was the failure to remove the pack of gauze, later extracted by Dr. Brigham. Dr. O'Conner's diagnosis of plaintiff's ailment is conceded to have been correct. His advice that an immediate operation was necessary is not questioned. Nor is his conclusion disputed that plaintiff during the operation unexpectedly passed into a state of shock, requiring quick action to provide drainage, close the wound, get the patient in bed, and apply proper restoratives. There is not the slightest criticism of the facilities of the hospital to which plaintiff was brought, nor is the skill and surgical ability of either of the Koops put in issue. In fact, nothing about the advisability of the operation, the manner in which it was performed, the drainage provided, or the care given plaintiff so long as he was under the care of either defendant, is pointed to in the evidence as faulty or contrary to good practice. There is no evidence of a joint employment of the three doctors; they as well as plaintiff understood that the Koops were to operate and O'Conner was to administer the ether. It took the latter some 15 or 20 minutes to put plaintiff in condition so that the surgeons could begin. The one giving the anaesthetic must give close attention to the patient, so as to keep him continuously unconscious, yet short of endangering life. It was unthinkable that O'Conner should explore the wound to see whether the sponges or packs had been removed before the incision was closed. The slit in the abdomen was only 7 or 8 inches long. It was deep. From his position near the head of plaintiff, busy with what he had to do, there was no opportunity to see what use and disposition were made of the gauze packs. If any doctor or nurse is negligent in any act or omission connected with an operation, it is right and just that such an one be held responsible; but, where several have distinct and separate parts to take, which require the undivided attention of each, only the one who fails to use due care in the performance of the part assigned to him should be held responsible. The fact that O'Conner received from plaintiff the entire compensation, and distributed the same to the hospital, the Drs. Koop, and himself, is not of much significance. From the very first plaintiff understood that O'Conner would not operate. The action was not tried on the theory that O'Conner had contracted with plaintiff for the operation and had failed to fulfill the contract; but was tried as one in tort, the special negligent act being the failure to remove the pack later extracted by Dr. Brigham. In the operation it was well understood by both plaintiff and those who participated therein that each of the latter had certain matters to attend to. The operating surgeon...
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