Carruthers v. Phillips

• Decision Date: 17 November 1942
• Citation: 131 P.2d 193,169 Or. 636
• Parties: CARRUTHERS <I>v.</I> PHILLIPS
• Court: Oregon Supreme Court

169 Or. 636

131 P.2d 193

CARRUTHERSv.

PHILLIPS

Supreme Court of Oregon.

Argued September 23, 1942.

Affirmed November 17, 1942.

Trial — Nonsuit — Directed verdict

1. On motions for nonsuit and directed verdict, question is whether plaintiff has made out a case requiring submission to jury.

Trial — Nonsuit — Directed verdict

2. On motions for nonsuit and directed verdict, evidence given for plaintiff must be taken as true, together with every inference of fact which jury might legally draw from it.

Evidence — Facts in issue

3. When the doing of an act by defendant is charged, evidence is admissible to show that defendant had opportunity to do it notwithstanding his opportunity be not shown to be exclusive, but proponent of the evidence may show that person charged was one of a few only or the sole person having the opportunity.

Physicians and surgeons — Malpractice — Negligence

4. In action for malpractice in performing vaginal operation for purpose of suspending a prolapsed uterus, evidence that bladder was exposed, that a new bladder wall was built up, that cutting was done, that gauze sponges were used and that a gauze sponge was removed from bladder 21 months later through another operation was sufficient for jury on issue of defendant's negligence.

Physicians and surgeons — Malpractice — Evidence

5. In action for malpractice in performing vaginal operation for purpose of suspending a prolapsed uterus, evidence that bladder was exposed, that new bladder wall was built up, that cutting was done, that gauze sponges were used, and that a gauze sponge was removed 21 months later through another operation was sufficient for jury on issues of proximate causation and damage.

Physicians and surgeons — Degree of care required

6. The standard of skill and care which the law imposes upon a surgeon in performance of an operation is not limited in its application to use of the knife, but he must also use skill in removal of surgical sponges.

Physicians and surgeons — Negligence

7. While the failure to remove sponges may not in all instances constitute a breach of surgeon's duty to use care and skill, evidence of such failure requires submission of negligence to jury, since it is "prima facie negligence" for surgeon to leave a surgical sponge in a wound after incision is closed.

Physicians and surgeons — Malpractice — Negligence

8. In action for malpractice in performing vaginal operation for purpose of suspending a prolapsed uterus, in failing to remove a sponge from the bladder, wherein defense was that no sponge was inserted, fact that a sponge was inserted and permitted to remain, no good purpose therefor appearing, raised a "prima facie case" of negligence, not necessarily dependent upon expert testimony.

Evidence — Hypothetical question

9. The function of the "hypothetical question" is to assume as an absolute fact alleged conditions or events if supported by evidence and to have an opinion based on the hypothesis.

Evidence — Hypothetical question

10. Plaintiff in forming hypothetical question propounded to an expert should not leave to speculation the facts upon which opinion is to be based.

Evidence — Hypothetical question

11. If plaintiff asks a fair question based on substantial evidence, he may have the expert's opinion on any combination of facts he may choose, and plaintiff need not include in question all details which appear in his own case and can not include the contradictory matter in his opponent's case, and may lay before jury by hypothetical questions scientific inferences properly deducible from facts supported by his evidence.

Evidence — Hypothetical question

12. The form of hypothetical questions propounded to experts is generally within discretion of trial court.

Evidence — Malpractice — Negligence

13. In malpractice action, an expert who was asked to assume that in course of vaginal operation for suspension of a prolapsed uterus defendant placed and left gauze in patient's bladder, was properly permitted to state whether in that event defendant exercised that degree of care and skill ordinarily exercised by physicians in practice of surgery in locality under like circumstances.

Appeal and error — Instructions

14. In action for malpractice in performing operation for purpose of suspending a prolapsed uterus, in failing to remove a sponge from bladder, wherein defendant claimed that he never inserted a sponge, alleged error in instruction which applied the standard of care applicable to ordinary negligence cases was not prejudicial since instruction was favorable to defendant who was under obligation to exercise that degree of care which is ordinarily exercised by the average physician in good standing in similar localities.

Trial — Instructions

15. In action for malpractice in performing operation, instructions were not inconsistent because after explaining what negligence

ordinarily consists of, court explained that ordinary care in malpractice action means the care imposed by law upon physicians and surgeons, and stated "by that standard will you measure the responsibility of the defendant in this case" since it was necessary to apply the general concept of ordinary care to the case of a physician.

Physicians and surgeons — Negligence

16. The failure to remove a sponge which should never have been inserted is evidence of "negligence" in the general sense involving a failure to exercise reasonable care under all the circumstances, and it is evidence of "negligence" when subjected to test employed in case of physicians and surgeons.

                  See 26 R.C.L. 1067 (8 Perm. Supp., p. 5836)
                  31 C.J.S., Evidence, § 173
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

CHARLES W. REDDING, Judge.

Action by Cecelia M. Carruthers against Ben I. Phillips to recover damages for malpractice in performing an operation. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

F.S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for appellant.

Earl F. Bernard, of Portland (Elmer Johnson and Collier, Collier & Bernard, all of Portland, on the brief), for respondent.

Plaintiff, Cecelia M. Carruthers, brings this action against defendant, Ben I. Phillips, a physician and surgeon, alleging malpractice. From a verdict and judgment for the plaintiff, defendant appeals.

The gist of plaintiff's complaint is that she was suffering from a prolapsed uterus and employed the defendant as a physician and surgeon to cure her of said trouble, and to that end, on the 19th day of October, 1937, the defendant performed an operation for the purpose of suspending the uterus. She alleges that during the operation the defendant negligently deposited a quantity of gauze in the plaintiff's bladder without her consent and failed to remove the same, with the result that a large stone was formed in the plaintiff's bladder, causing severe illness and requiring a surgical operation which was performed on July 11, 1939. The defendant by answer admits that he performed the operation for the suspension of the uterus and denies all other allegations of the complaint.

The defendant assigns as error the denial of his motions for nonsuit and directed verdict, the ruling of the court upon the hypothetical question propounded to Dr. Joyce and the giving of certain instructions to the jury.

BRAND, J.

1. In its discussion of the rulings upon the motion for nonsuit and directed verdict, the brief of the learned counsel for the defendant is of less than usual value because it is devoted chiefly to evidence adduced by the defendant in opposition to plaintiff's case, whereas the question is whether the plaintiff has made out a case requiring submission to the jury.

2. Notwithstanding contradictory evidence, upon motions for nonsuit and directed verdict the evidence given for the plaintiff must be taken as true, together with every inference of fact which the jury might legally draw from it. Sorenson v. Smith, 65 Or. 78, 129 P. 757, 131 P. 1022, 51 L.R.A. (N.S.) 612, Ann. Cas. 1915A, 1127 (1913); In re Herdman's Estate, 167 Or. 527, 119 P. (2d) 277, (1941).

The evidence favorable to the plaintiff may be summarized as follows: Prior to October 19, 1937, the plaintiff was suffering from a prolapsed uterus, rectocele and cystocele. On that date, pursuant to employment by the plaintiff, the defendant operated for the purpose of suspending her uterus. No abdominal incision was made, the operation being performed through the vagina. Two incisions were made in the vagina, one in the anterior and one in the posterior wall, each about an inch and a half long. The defendant, Phillips, by deposition testified that the prolapsed uterus was the result of tears which occurred at the time of child-birth

"* * * and where that structure, the fascial structure is torn, that permits the rectum and uterus and the female organs to drop into the vagina, sometimes protruding clear outside."

He testified further that in this case,

"* * * the uterus didn't come clear outside; the rectum and the bladder came outside."

The bladder was down as low as the uterus and "was protruding through the vaginal wall." Defendant had to work close to the bladder wall, which walls are quite thin. After the operation the defendant informed plaintiff that he "had had to build up a new bladder wall." In the course of the operation the defendant used gauze sponges.

3, 4. Some time later a serious bladder trouble arose. An X-ray showed a

"* * * big rock in the bladder with a little tail on it just like — almost like a hen's egg with a little tail on it."

On July 11, 1939, nearly 21 months after the first operation, the plaintiff was again operated upon, and a large stone was removed from the bladder. Dr. Warren C. Hunter, a specialist in pathology, testified:

"Incorporated in the stone on one side is a mass of cotton gauze. Just how deeply this...