Burke v. Washington Hospital Center, 71-1452.
| Decision Date | 09 February 1973 |
| Docket Number | No. 71-1452.,71-1452. |
| Citation | 475 F.2d 364 |
| Parties | Mary BURKE et al., Appellants, v. WASHINGTON HOSPITAL CENTER et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
A. Lillian C. Kennedy and Mabel D. Haden, Washington, D. C., were on the brief for appellants.
John L. Ridge, Jr., Washington, D. C., was on the brief for appellee.
Before ELBERT P. TUTTLE,* United States Senior Circuit Judge for the Fifth Circuit, and TAMM and WILKEY, Circuit Judges.
Plaintiffs-appellants, husband and wife, brought this action seeking damages for failure to remove a surgical sponge from Mary Burke's abdomen during an operation performed by Dr. Ernest W. Lowe. Washington Hospital Center, as codefendant and employer of the nurses who attended at the operation, reached a settlement with plaintiffs shortly before trial. After trial below on the remaining claim against Dr. Lowe (who was not an employee of the Hospital), the jury returned verdicts in favor of appellants. However, the trial court subsequently granted a judgment notwithstanding the verdict on the ground that plaintiffs had not introduced "any evidence from which the jury could properly find the defendant Lowe liable." We conclude that the grant of judgment n. o. v. was in error.
Plaintiffs' evidence that a surgical sponge was left inside Mrs. Burke during the operation performed by Dr. Lowe establishes a prima facie case of negligence. The jury could infer negligence without any further showing, under the doctrine of res ipsa loquitur, because the event complained of is clearly one which "ordinarily would not happen in the absence of negligence." Raza v. Sullivan, 139 U.S.App.D.C. 184, 432 F.2d 617, 620 (1970); Quick v. Thurston, 110 U.S.App.D.C. 169, 290 F.2d 360 (1961).
Appellee's brief virtually admits the application of the doctrine of res ipsa loquitur, but contends that there was defense evidence adequate to overcome any inference from that doctrine alone. We disagree. The defense consisted primarily of Dr. Lowe's testimony that he carefully searched the abdominal cavity. However, since the jury was free to disbelieve his testimony, it does not necessarily refute the inference from res ipsa. "Defense testimony that due care was used will not in itself eliminate the inference rooted in the probabilities of human experience." Raza v. Sullivan, supra, 432 F.2d at p. 621, n. 7.
Appellee attempted to shift responsibility for the injury by asserting that the nurse's sponge count was reported (obviously erroneously) as in order. While this may be enough to support shared liability on the part of the nurse's employer, Washington Hospital Center, it does not relieve the operating and supervising surgeon of his responsibility.
The proper procedure to be followed by the doctor after receiving notice of a "correct" sponge count ultimately relates to the...
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