Carpenter v. Campbell

• Decision Date: 30 June 1971
• Docket Number: No. 970A151,No. 1,970A151,1
• Citation: 271 N.E.2d 163,149 Ind.App. 189
• Parties: Dr. B. F. CARPENTER et al., Defendants-Appellants, v. Newton E. CAMPBELL and Norma J. Campbell, Plaintiffs-Appellees
• Court: Indiana Appellate Court

Page 163

271 N.E.2d 163

149 Ind.App. 189

Dr. B. F. CARPENTER et al., Defendants-Appellants, v. Newton E. CAMPBELL and Norma J. Campbell, Plaintiffs-Appellees.

No. 970A151.

Appellate Court of Indiana, Division No. 1.

June 30, 1971.

Fred F. Eichhorn, Jr., James L. Kennedy, Schroer, Eichhorn & Morrow, Hammond, for defendants-appellants.

Lester Murphy, Jr., East Chicago, for plaintiffs-appellees; Murphy, McAtee, Murphy & Costanza, East Chicago, of counsel.

SULLIVAN, Presiding Justice.

This action was brought by Appellees, Newton E. Campbell and Norma J. Campbell, for damages for personal injuries and loss of services growing out of the alleged malpractice and negligence of the Appellants who are physicians and surgeons engaged in the general practice of medicine and in the case of appellant Shellhouse, Administratrix of the Estate of Michael Shellhouse, M.D., deceased.

On June 9, 1964, the plaintiff-appellee Norma J. Campbell underwent a Caesarean section for the delivery of a child. Her primary prenatal care was by Dr. B. F. Carpenter. Dr. Michael Shellhouse was the surgeon selected by Dr. Carpenter. Dr. Carpenter assisted in the June 9 surgery. Dr. Lundeberg, an office associate and the employer of Dr. Carpenter, was not present during this operation.

Subsequently, on July 4, the plaintiff, Norma J. Campbell, suffered an obstructed bowel and was taken to the hospital at the direction of the defendant, Dr. Carpenter, where further surgery was done on July 5 to relieve the bowel obstruction. Dr. Shellhouse performed this surgery assisted by Drs. Carpenter and Lundeberg. The patient remained in the hospital until August 12, 1964.

During the period July 4 to August 12 the patient's condition was at times grave and she required extensive medication and attention in the cure of her medical condition. During said hospitalization, in the early hours of July 5, a drug known as Levophed was administered, which drug was known as a life-saving drug used to build blood pressure in cases of shock. It is a caustic drug, but can be essential to life in cases of deep shock. A quantity of the Levophed came in contact with the skin and subcutaneous tissue of the plaintiff's left hand, causing scarring. On July 20 an operation took place for the purpose of rectifying the scarring. On September 4 a skin graft was done to the plaintiff's left arm to correct the skin defect thereon.

The issues were formed by agreement of the parites at a pre-trial conference which resulted in an order delineating the issues as follows:

(1) The plaintiffs rely upon the theory of res ipsa loquitur concerning the negligence by all the defendants in the Caesarean section operation performed in June of 1964 and the second operation performed July 5, 1964. Plaintiffs asserted that plaintiff Norma J. Campbell was unconscious when all of these acts were performed and in the complete custody, control and care of the defendants and that the results of both of said operations were not the normal and natural results to be expected from such surgery absent negligence upon the part of said defendants. (2) In addition thereto, plaintiffs allege twenty separate acts of specific negligence committed by one or more of the defendants at various times during Mrs. Campbell's medical care and treatment.

The cause was tried to the court without jury. At the conclusion of the plaintiffs' evidence plaintiffs voluntarily withdrew certain allegations of negligence from the consideration of the court and certain others were withdrawn by the court's ruling upon defendants' motion to withdraw such issues. Thus at the time the cause was submitted to the court for decision and judgment the only issues remaining for determination were as follows:

(1) Res ipsa loquitur concerning negligence by all the defendants in the Caesarean section operation performed in June of 1964;

(2) The following specific allegations of negligence:

(a) The defendants were negligent in releasing plaintiff from the hospital on June 15, 1964, when the wound from her Caesarean section surgery was still seeping and infection was present;

(b) That the defendants, Carpenter and Lundeberg, were negligent in the removal of plaintiff's stitches following the Caesarean section surgery;

(c) That the defendants, Carpenter and Lundeberg, were negligent in not having someone present at all times on the morning of July 5, 1964, while Levophed was being administered to the plaintiff;

(d) That the defendants, Carpenter and Lundeberg, were negligent in failing to fasten down or otherwise secure plaintiff's arm while Levophed was being administered on the morning of July 5, 1964.

On March 9, 1970, the Court entered its findings and judgment which read insofar as pertinent as follows:

'The court having heretofore heard the evidence and arguments of counsel and being duly advised, finds for the plaintiffs and against all defendants that defendants were negligent in their care and treatment of Norma J. Campbell in connection with the operation performed by them upon her on June 9, 1964, and that as a proximate result thereof the plaintiff, Norma J. Campbell, was injured and damaged in the amount of $10,000.00, and the plaintiff, Newton E. Campbell, was damaged in the amount of $3,000.00.

'The court further finds that the defendants, B. F. Carpenter and R. A. Lundeberg, were negligent in their treatment and care of the plaintiff, Norma J. Campbell, on July 4th and 5th, 1964, and that as a proximate result thereof the plaintiff, Norma J. Campbell, was injured and damaged in the amount of $15,000.00 and that the plaintiff, Newton E. Campbell, was damaged in the amount of $2,000.00.

'It Is Therefore Ajudged and Decreed that the plaintiff, Norma J. Campbell, have and recover of and from all of the defendants herein, the sum of $10,000.00, and that the plaintiff, Newton E. Campbell, have and recover of and from all of the defendants herein the sum of $3,000.00.

'It Is Further Adjudged and Decreed that the plaintiff, Norma J. Campbell, have and recover of and from the defendants, B. F. Carpenter and R. A. Lundeberg, in addition to the above, the sum of $15,000.00, and that the plaintiff Newton E. Campbell, have and recover of and from the defendants, B. F. Carpenter and R. A. Lundeberg, in addition to the above, the sum of $2,000.00.'

This appeal presents two primary issues in addition to three less crucial specifications of error. They are:

(1) Whether the doctrine of res ipsa loquitur is applicable under the particular facts and, if so, whether it can be made to apply to assisting surgeons as well as the chief surgeon, and further, whether if the doctrine is applicable it can be extended by respondeat superior to the physician who employed the assisting surgeon who in turn selected the chief surgeon. ¹

(2) Whether the evidence is sufficient to justify a finding of negligence on

the part of Drs. Carpenter and Lundeberg.

DOCTRINE OF RES IPSA LOQUITUR NOT

APPLICABLE TO CAESAREAN SURGERY PERFORMED

Medicine is an inexact science and serious complications, even death, arising from the practice thereof should not in most situations be properly chargeable to a physician without proof of some negligent act. To hold otherwise would require physicians to insure rapid and proper recovery by their patients from any and all surgical and postoperative treatment. Edwards v. Uland (1923) 193 Ind. 376, 140 N.E. 546; McCoy v. Buck (1927) 87 Ind.App. 433, 157 N.E. 456, rehearing denied 160 N.E. 46. To apply the doctrine of res ipsa loquitur in all cases where an unexpected recult occurs would stifle the necessary development of medical science. No physician would dare use new procedures, especially in surgery, if resulting injury would subject him to prima facie liability for negligence.

As a general proposition it may be stated that the doctrine of res ipsa loquitur permits negligence to be inferred from the unusual character of an injury suffered when it occurs while a patient and his actions or reactions are under a doctor's care and exclusive control. For the doctrine to be applicable, the injury must be of a character which would not occur but for an act of negligence and it must be caused by an agency or instrumentality within the exclusive control of the physician. In the last analysis, res ipsa loquitur is an evidentiary doctrine--a mere method of proof. It is premised upon an assumption that in certain instances an occurrence is so unusual that absent a reasonable justification those in control of the situation should be held responsible.

We believe the current posture of Indiana law to be as above stated. Worster v. Caylor (1953) 231 Ind. 625, 110 N.E.2d 337 (overruled on different grounds, New York, Chi., etc. R.R. Co. v. Henderson (1957) 237 Ind. 456, at page 464, 146 N.E.2d 531). Stated somewhat differently, the doctrine may be invoked in medical malpractice actions when a layman is able to say that as a matter of common knowledge the consequences of the professional treatment are not those which ordinarily result if due care is exercised and that when there is no basis of common knowledge for such a conclusion, application of the doctrine may be grounded upon expert medical testimony. See Fehrman v. Smirl (1963) 20 Wis.2d 1, 121 N.W.2d 255, 122 N.W.2d 439.

The only untoward consequence flowing from the Caesarean section surgery of June 9 (the only event within the issues possibly subject to the doctrine of res ipsa loquitur) which could possibly indicate negligence on the part of defendants in the performance of that operation was the bowel obstruction and abdominal infection (peritonitis) which followed and which were found to exist when surgery was performed on July 5. ² The bowel obstruction protruded through a portion of the abdominal wall. Its cause was factually undetermined.

Dr. Scully, a consulting physician upon plaintiff-appellee's case, testified that bowel obstructions may be occasioned by...