Cassingham v. Berry
| Decision Date | 04 December 1917 |
| Docket Number | 4067. |
| Citation | 168 P. 1020,67 Okla. 134 |
| Parties | CASSINGHAM v. BERRY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 4, 1917.
Syllabus by the Court.
The law imposes but one standard of diligence, and that is reasonable and ordinary care. This, however, is a relative term; and what would be reasonable and ordinary care under some conditions would amount to negligence under others. The importance, delicacy, hazard, and moment of the undertaking all enter into the question as to what, under the circumstances, amounts to reasonable and ordinary care.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Reasonable Care; Ordinary Care.]
On rehearing. Former opinion adhered to.
For former opinion, see 150 P. 139.
The one question involved in this case upon which we have had misgivings is the doctrine that the degree of diligence that the law imposes upon the surgeon is reasonable or ordinary care. We earnestly requested and hoped that counsel in the argument upon rehearing would give us light on this question. But counsel have not cited, nor have we been able to find, a single instance in which the courts or law impose any standard of diligence upon any one, other than reasonable and ordinary care. It is true this is a relative term. And what would be reasonable and ordinary care under some conditions would amount to negligence under others. The importance delicacy, hazard, and moment of the undertaking all enter into the question as to what, under the circumstances amounts to reasonable and ordinary care, and is a question of fact for the jury. City of Shawnee v. Cheek, 41 Okl 227, 137 P. 724, 51 L. R. A. (N. S.) 672.
In the case at bar, the evidence is that the defendant before beginning the operation, counted the sponges to a trained nurse, who had been furnished by the husband of deceased, and repeatedly admonished her to keep an accurate count of the number of sponges inserted into the cavity, and did all he could to impress upon her the importance of her accurately counting the number of sponges taken from the cavity, to insure that none that had been inserted remained in the cavity, and that, before closing the cavity, he asked the nurse if she had counted the sponges, and if all that had been inserted had been taken out of the cavity, and she assured him that she had counted them, and that they had all been taken out. it is also in evidence that...
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