Cassingham v. Berry
| Decision Date | 01 June 1915 |
| Docket Number | 4067. |
| Citation | 150 P. 139,67 Okla. 134,1915 OK 409 |
| Parties | CASSINGHAM ET AL. v. BERRY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 13, 1915.
Syllabus by the Court.
An assignment of error, based on improper remarks and misconduct of an attorney, cannot be maintained, unless the objections are timely made, and an exception is taken to the ruling of the court if adverse, or to the failure of the court to interfere if the court remains silent when such objection is made.
An action against a suregon for negligently leaving gauze sponges in the body of the patient upon whom he had operated which resulted in her death. The defendant is entitled to an instruction on his theory of defense, and it is not error for the court to instruct the jury that, though they believe the defendant did leave the sponges in the body of the patient and her death was the natural and proximate result thereof yet if they also believe that, in the performance of the operation, he exercised ordinary care in keeping track of the sponges and seeing to it that they were all removed, before the incision was closed, he could not be held liable for negligence. The gist of such action is not based upon the result of the operation, but upon negligence in its performance, and the rights of the parties must be tested by whether or not the defendant exercised that degree of care in performing the operation that is imposed upon him by law.
It is not error to refuse to instruct the jury upon a cause of action not pleaded nor relied upon, in the petition of the plaintiff.
Commissioners' Opinion, Division No. 2. Error from District Court, Okmulgee County; Wade S. Stanfield, Judge.
Action by Albert Lee Cassingham and others against Dr. V. Berry. Judgment for defendant, and plaintiffs bring error. Affirmed.
Frank F. Lamb, of Okmulgee, and Ramsey & Thomas, of Muskogee, for plaintiffs in error.
Jas. S. Ross, of Oklahoma City, Belford & Hiatt, of Okmulgee, L. D. Threlkeld, of Oklahoma City, and Lex V. Deckard, of Okmulgee, for defendant in error.
This action was brought by the plaintiffs in error against the defendant in error, a physician and surgeon, to recover damages for malpractice, which is alleged to have resulted in the death of the mother of the plaintiffs in error.
Parties to this action will be referred to in this opinion as plaintiffs and defendant, as they appeared in the lower court.
The alleged facts upon which the plaintiffs seek to recover, briefly stated, are that Dr. Milroy was treating the plaintiffs' mother, Mrs. Ella Jane Cassingham, as physician, and decided that the removal of her ovaries was necessary to her recovery, and recommended the defendant as a competent and skillful surgeon; that defendant was employed to perform this operation, and did so in connection with Drs. Joe Milroy, Fred Milroy, and Miss Mahaney, a trained nurse; that after the operation Mrs. Cassingham, who will for convenience hereafter be referred to as the deceased, did not improve as she should; the wound did not heal, she suffered great pain, and the attention of the defendant was called to this condition, but he did nothing to relieve it, except to give opiates to deaden the pain; that the wound did not heal, but kept open in the form of a discharging sinus, and deceased continued to get worse, until several months later, when she was moved to a hospital in Kansas City, Mo., where an operation was performed, and two gauze sponges were found in the abdominal cavity in a decayed condition. The plaintiffs allege that these sponges caused the death of their mother, and were negligently left there by the defendant. The defendant files a general denial, admits performing the operation, denies that he was negligent; and alleges that he exercised all the skill and care he possessed, and employed all the science within his knowledge; that he had the assistance of Drs. Milroy and a trained nurse, who was not employed by him, but was employed by the husband of deceased, or some one acting in his behalf; that the operation was a difficult one; that it was necessary that he should keep his mind concentrated upon the surgical part thereof; and he repeatedly admonished the nurse to keep accurate count of the sponges inserted into the cavity; that this was her duty, and that he impressed upon her the importance of seeing that they were all removed, and after the operation, and before the cavity was closed, he asked the nurse if she had counted the sponges, and if all had been taken out, and she assured him she had counted them, and that they had all been taken out; that he relied upon her statement, believed it to be true, and now believes it was true and correct, and that all the sponges had been removed before the cavity was closed. The plaintiffs reply by general denial. The cause was tried to a jury, and verdict and judgment was for defendant, and the plaintiffs have perfected their appeal to this court.
There are three assignments of error relied upon, and argued by the plaintiffs in their brief.
The first is misconduct of the attorney for the defendant. The matter relied on as misconduct and argued in the brief is the offer, by the attorney for defendant, in the presence of the jury, to prove by certain witnesses matters derogatory to the character of the deceased. This offer was objected to by the plaintiffs on the ground that "it is incompetent, irrelevant, and immaterial, and is not such a defense as can be proven under the issues as drawn in this case," and the court promptly sustained this objection. It does not appear from the record that counsel for plaintiffs asked that the offer be made in the absence of the jury, and that the court refused this request, or that he excepted to the offer on the ground that it was prejudicial, but only objected on the ground of incompetency, which was promptly sustained. We are referred by counsel for plaintiffs, to a number of cases, in which reversals were had on the ground of misconduct of the prevailing counsel. But in all these cases that we have examined exceptions were taken at the time to the misconduct, and the record properly preserved. This was not done in this case, and where it is not done, we think the rule is correctly stated in Gorham v. Sioux City Stockyards Co., 118 Iowa, 749, 92 N.W. 698, in which the Supreme Court of Iowa says:
...
To continue reading
Request your trial