Cronin v. Hagan

• Decision Date: 18 September 1974
• Docket Number: No. 56137,56137
• Citation: 221 N.W.2d 748
• Parties: Patricia CRONIN, Appellant, v. Dr. Edward J. HAGAN, Appellee.
• Court: Iowa Supreme Court

Page 748

221 N.W.2d 748

Patricia CRONIN, Appellant, v. Dr. Edward J. HAGAN, Appellee.

No. 56137.

Supreme Court of Iowa.

Sept. 18, 1974.

O'Brien, Galvin & O'Brien, Sioux City, for appellant.

Robert E. Beebe and Maurice B. Nieland of Kindig, Beebe, McCluhan, Rawlings & Nieland, Sioux City, for appellee.

Heard before MOORE, C.J., and MASON, REES, REYNOLDSON, and McCORMICK, JJ.

MASON, Justice.

Patricia Cronin originally brought a medical malpractice suit against Doctors Hagan (spelled Hagen in some portions of the record) and Howard. The trial court directed a verdict for Dr. Howard and the jury returned a verdict for defendant Hagan. Plaintiff appeals alleging various errors.

Plaintiff, married and the mother of five children, began experiencing gynecological problems in 1967. About that time she became a patient of Dr. Edward Hagan, M.D., a licensed physician of the state of Iowa, specializing in obstetrics and gynecology and practicing in Sioux City. Her discomfort and other problems continued until April 1970 when defendant advised her a hysterectomy was warranted. Plaintiff had been expecting the necessity of such an operation and agreed to undergo surgery within a week. Although plaintiff expressed reservations about having the operation performed vaginally instead of abdominally, defendant assured her that procedure was proper and effective and would have the additional benefit of allowing him to make other necessary repairs.

Friday, April 10, plaintiff underwent a hysterectomy. A hysterectomy, as disclosed by the medical testimony, involves surgical removal of the uterus and repair of any weaknesses in the bladder or the entrance of the urethra into it. The right ureter is within about one and one half dentimeters of the cervix and therefore great care must be exercised to avoid injury to the ureter. The day following the operation plaintiff felt very ill, was nauseous, could not retain liquids and had pain in her right flank. Monday she was still sick and nauseous and refused to take any medication until the cause of her distress was diagnosed. Plaintiff is allergic to sulfa but had been receiving a drug containing sulfa; after defendant prescribed a different drug the nausea ceased and plaintiff could once again retain liquids. The pain in her right side continued and worsened.

Thursday, April 16, defendant ordered X rays of plaintiff's urinary tract; they revealed a partial blockage of the right ureter. A urologist, Dr. Howard, was consulted and he performed a cystoscopy the following day. Attempts to dispel the partial blockage by insertion of a catheter into the ureter were unsuccessful. Dr. Howard then advised exploratory abdominal surgery for the purpose of relieving any obstruction possibly found in the lower end of the right ureter. Assisted by Dr. Hagan, such surgery was performed by Dr. Howard Saturday, April 18.

This operation revealed ligatures or sutures and adhesions very close to the blocked area of the ureter. However, there were no ligatures or stitches going through or around the ureter. The ligatures and adhesions in the area of the partial blockage of the ureter were a result of the hysterectomy and were putting pressure on the ureter. Dr. Howard was easily able to 'free up' the ureter at this time. He also inserted a tube up the right ureter from the bladder to the kidney; the tube encountered no blockage and immediately began to drain completely the right kidney. This tube was left in place and surgery completed. Thereafter, plaintiff experienced no more pain in her right side.

Five days later the ureter tube was removed and shortly thereafter plaintiff was released from the hospital. Approximately four days later plaintiff began to have considerable drainage from the abdominal wound. Later when urine began seeping from the wound plaintiff returned to the hospital. X rays and another cystoscopy revealed a fistula or small opening in the right ureter in the same area where the partial blockage had originally been encountered. This fistula had developed from pressure on the ureter from ligatures, sutures and adhesions in the area resulting from the hysterectomy. The pressure led to necrosis or deadening of tissue of the ureter and ultimately to the fistula. Utilizing conservative treatment a tube or catheter was again placed in the right ureter in the hope that the fistula would heal by itself. This catheter was left in for ten days but within a few hours of its removal plaintiff again experienced pain and leakage as before.

It was then determined a third operation would have to be performed. Plaintiff was informed at this time that it might be necessary to remove the right kidney. The operation was performed and the kidney removed.

Plaintiff thereafter brought suit against Dr. Hagan and later, in an amended petition, against Dr. Howard. The trial court sustained a motion for directed verdict by Dr. Howard and that ruling is not a subject of this appeal.

Plaintiff's petition is in three divisions. Division 1 is based on the doctrine of res ipsa loquitur, the second on a theory of specific negligence and the third relies on the allegation defendant's treatment was so obviously negligent as to be within the common knowledge of the general public.

Plaintiff and her husband both testified in support of her petition. She also called defendant and Dr. Howard for interrogation. Section 624.1, The Code.

At the close of plaintiff's evidence defendant and Dr. Howard moved for directed verdict as to all divisions. It was then overruled. Defendant then adopted his testimony and that given by Dr. Howard when called by plaintiff and rested. Dr. Howard followed the same procedure. There was no rebuttal.

Defendant and Dr. Howard then renewed the motions previously made and defendant incorporated the grounds and reasons urged by Dr. Howard in his motion for directed verdict as a basis for a favorable ruling. As indicated, motion for directed verdict in favor of Dr. Howard was sustained. Defendant's motion was again overruled. In response to an inquiry by defendant's counsel as to whether all of defendant's motions were overruled on all divisions the court informed counsel they were at that time but when the instructions were considered it would then be determined what was to be submitted to the jury. The court indicated it had not had an opportunity to study the briefs presented and that the ruling as made at the time was for the record.

Later the court made further record with regard to defendant's motion for directed verdict before overruling it. The court then sustained defendant's motion to withdraw from consideration of the jury all specifications of negligence asserted in paragraph 2 of division 2 except the allegation in subparagraph a thereof that defendant was negligent 'in performing said operation in a manner failing to identify, isolate, and protect the right ureter of the Plaintiff resulting in same being completely blocked for a period of eight days.'

Shortly thereafter counsel were furnished copies of the proposed instructions and given opportunity to make objections and take exceptions. At this point plaintiff objected to the court's failure to instruct on the doctrine of res ipsa loquitur. The objection was overruled without comment.

The appeal presents three issues for review: (1) Did the trial court err by refusing to submit the case to the jury under the doctrine of res ipsa loquitur? (2) Should the question of defendant's negligence in failing to discover the difficulty in the ureter for eight days have been submitted to the jury? and (3) Was it proper to withdraw from consideration of the jury the issue as to defendant's negligence in ordering sulfa drugs for plaintiff under the facts in the record?

I. The first issue presented for review--applicability of the doctrine of res ipsa loquitur--is raised by plaintiff's assignment of error wherein she contends the trial court erred in refusing to submit the case to the jury on the theory of res ipsa loquitur.

Although plaintiff's assignment simply states the trial court erred in refusing to submit the case to the jury under the doctrine of res ipsa she argues almost exclusively that the court erred in not giving her requested instruction. The assignment, however, must be predicated on the court's sustaining the directed verdict as to division 1 rather than as to refusal to give a specific instruction.

Schneberger v. Glenn, 176 N.W.2d 782, 784 (Iowa 1970), gives a concise summary of the principles governing scope of review following a motion for directed verdict:

'In passing upon motions to direct verdicts for a defendant, the court is required to view the evidence in the light most favorable to the plaintiff it will reasonably bear. * * * (citing authority) If reasonable minds might differ on the evidential questions, then a fact or jury question is presented and the motion to direct the verdict should be overruled. * * * (citing authority) A movant for a directed verdict must be considered as admitting the truth of all evidence offered by the adverse party and every favorable inference which may be fairly and reasonably deduced therefrom. * * * (citing authority) A jury question is engendered where facts are not in dispute or not contradicted if reasonable minds might draw different inferences from them. * * * (citing authorities).' See also Winter v. Honeggers' & Co., Inc., 215 N.W.2d 316, 321 (Iowa 1974) and authorities cited.

Before submission of a case on the theory of res ipsa loquitur plaintiff must prove existence of essential facts necessary to bring the rule into operation. They are: (1) exclusive control and management of the instrumentality which caused the injury complained of by the person charged with negligence and (2) an occurrence causing the injury which was of such a type as in the ordinary course of events would not have happened if reasonable care had been used. Wiles v. Myerly, ...