Conrad v. Lakewood General Hospital

• Decision Date: 03 February 1966
• Docket Number: No. 37825,37825
• Citation: 67 Wn.2d 934,410 P.2d 785
• Court: Washington Supreme Court
• Parties: , 10 A.L.R.3d 1 Ella Magdalen CONRAD, a widow, Respondent, v. LAKEWOOD GENERAL HOSPITAL, a Washington corporation, and Louis T. Hoyer, Jr., M.D., and Jane Doe Hoyer, husband and wife, Respondents, Robert P. Crabill and Jane Doe Crabill, husband and wife, Appellants. Ella Magdalen CONRAD, a widow, Respondent, v. LAKEWOOD GENERAL HOSPITAL, a Washington corporation, Robert P. Crabill and Jane Doe Crabill, husband and wife, Respondents, Louis T. Hoyer, Jr., M.D. and Jane Doe Hoyer, husband and wife, Appellants.

Page 934

67 Wn.2d 934

410 P.2d 785, 10 A.L.R.3d 1

Ella Magdalen CONRAD, a widow, Respondent, v. LAKEWOOD GENERAL HOSPITAL, a Washington corporation, and Louis T. Hoyer, Jr., M.D., and Jane Doe Hoyer, husband and wife, Respondents, Robert P. Crabill and Jane Doe Crabill, husband and wife,

Appellants.

Ella Magdalen CONRAD, a widow, Respondent, v. LAKEWOOD GENERAL HOSPITAL, a Washington corporation, Robert

P. Crabill and Jane Doe Crabill, husband and wife,

Respondents,

Louis T. Hoyer, Jr., M.D. and Jane Doe Hoyer, husband and

wife, Appellants.

No. 37825.

Supreme Court of Washington, Department 2.

Feb. 3, 1966.

Lycette, Diamond & Sylvester, Earle W. Zinn, Seattle, Allan R. Billett, Tacoma, for appellants.

Roller, Barker & Turco, J. J. Roller, Tacoma, for respondents.

FINLEY, Judge.

A hemostat is a metal, scissor-like surgical instrument. The device is used by surgeons to check bleeding in the operative field by compressing the tissue or bleeding blood vessels. The plaintiff herein, Mrs. E. M. Conrad, underwent surgery for a malfunctioning gall bladder on June 21, 1963. During the course of the operation, several hemostats were used by the surgeon and his assistant to clamp off blood vessels in the area in which the surgeon and his assistant were working. Unfortunately, one hemostat--not insignificant in size, being approximately 5 1/2 inches in length and 2 1/2 inches in width--was left in the plaintiff's abdominal cavity after the surgical incision was closed. Mrs. Conrad enjoyed an otherwise uneventful and normal postoperative recovery until the morning of August 7, 1963. At that time she suffered severe nausea and abdominal cramping. X-rays disclosed the presence of the heretofore undiscovered hemostat, necessistating a second operation to remove the instrument from her abdomen. In order to extract the hemostat, the same surgeon and assistant who performed the initial gall bladder operation were forced also to remove fourteen inches of her small intestine.

Mrs. Conrad subsequently commenced an action against: (1) Dr. Louis T. Hoyer, the surgeon in charge of both operations, (2) Dr. Robert P. Crabill, the general practitioner who served as Dr. Hoyer's assistant, and (3) the Lakewood General Hospital, where the operation was performed. Upon trial to a jury, the hospital was exonerated, and a verdict was rendered against both the surgeon and the general practitioner in the sum of $12,500.00. The defendant doctors have appealed separately. There is no appeal as to the verdict for the hospital.

The plaintiff's theory of relief was relatively unique in that her pleadings and proof at the trial focused upon simple negligence rather than malpractice. In other words, she did not claim that the appellant doctors had deprived her of the beneficial effects of proper treatment. Instead, she urged that the doctors were negligent in that they failed to keep a count of the instruments used in the original gall bladder surgery, and, as a result, one hemostat was enclosed in the plaintiff's abdominal cavity at the termination of the operation.

Bluntly stated, this appeal is nothing more than an attempt by Dr. Crabill to make Dr. Hoyer, as the surgeon in charge, solely liable; and, correlatively, Dr. Hoyer attempts to transfer liability to Dr. Crabill alone. But the clouds of dust stirred by this intramural battle have failed to obfuscate one key consideration: it is patent that the hemostat was not Intentionally left in the plaintiff's body. It is only logical to infer that the instrument was Inadvertently albeit allegedly negligently, sewed up inside the plaintiff's abdominal cavity. There should be no question in Washington as to whether such inadvertence, in and of itself, constitutes negligent conduct. In McCormick v. Jones, 152 Wash. 508, 278 P. 181, 65 A.L.R. 1019 (1929), we held that a surgeon was negligent as a matter of law in introducing a sponge and inadvertently leaving it in the plaintiff's body on closing the incision. Thus, The question posed here is simply whether or not more than one doctor's conduct can or should be made legally responsible for creating the risk that a surgical instrument would be left in the plaintiff's body. We are convinced that the trial court was warranted in submitting the case to the jury in such a manner that it Could conclude that both doctors should be liable. In this respect, it should be noted that the jury was directed to find against Dr. Hoyer, but the question of Dr. Crabill's alleged negligence was submitted to the jury.

Essentially, Dr. Crabill's theory is that Dr. Hoyer was solely responsible for making the decision to close the surgical wound; therefore, he, alone, should be made liable for the resultant damages to the plaintiff. Dr. Crabill concludes that the trial court should have directed a verdict in his favor. We cannot agree. Even though appellant Crabill is only a general practitioner, he had certain responsibilities in the operative field as an assistant to the surgeon throughout the operation. Dr. Crabill helped expose the operative site at the commencement of the operation. He helped the surgeon stop the bleeding in the incision area by clamping blood vessels with hemostats while Dr. Hoyer tied sutures around them. In general, the assistant is to keep the operating field clear during the entire course of the operation; thus, his attention is directed to the incision area throughout the operation.

With respect to the liability of two physicians independently engaged, the rule is found in 85 A.R.L.2d 889, where, at page 893, it is stated:

Physicians independently employed or acting independently in the case are not vicariously liable unless the one observed, Or in the excerise of ordinary care should have observed, the wrongful act of the...