Danks v. Maher

• Decision Date: 15 July 1965
• Docket Number: No. 1896,1896
• Citation: 177 So.2d 412
• Court: Court of Appeal of Louisiana — District of US
• Parties: Irene ROBERTSON, Widow of Gloss DANKS v. Dr. Fred W. MAHER, Sara Mayo Hospital, Michigan Mutual Liability Company, and Aetna Casualty & Surety Company.

Page 412

177 So.2d 412

Irene ROBERTSON, Widow of Gloss DANKS v. Dr. Fred W. MAHER, Sara Mayo Hospital, Michigan Mutual Liability Company, and Aetna Casualty & Surety Company.

No. 1896.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1965.

Dissenting Opinion July 29, 1965.

John P. Dowling, Calvin H. McBride and James D. McGovern, Jr., New Orleans, for plaintiff-appellee.

Lemle & Kelleher, Carl J. Schumacher, Jr., and David L. Campbell, New Orleans, for defendants Sara Mayo Hospital and Aetna Casualty & Surety Company, appellants.

Before SAMUEL, CHASEZ, and HALL, JJ.

SAMUEL, Judge.

This is a suit for damages sustained by the plaintiff when a laparotomy square was left in her body during surgery. Named defendants are plaintiff's doctor, the hospital in which the operation was performed, and their respective insurers, Michigan Mutual Liability Company and Aetna Casualty & Surety Company. During the course of a trial to a jury plaintiff settled her claim against the doctor and his insurer. In accordance with the terms of that settlement, plaintiff moved for, and was granted, a dismissal of her suit as to those defendants, reserving to her the right to proceed against the remaining two defendants. The latter, the hospital and its insurer, then filed an exception of nonjoinder of indispensable parties plaintiff. The exception was overruled, the trial proceeded against the two exceptors-defendants, and at its conclusion the jury returned a verdict in the amount of $45,000 in favor of plaintiff and against the hospital and its insurer. Judgment was entered in accordance with the verdict and the hospital and its insurer have appealed therefrom.

Plaintiff employed the doctor to remove an abdominal cyst. The surgery was performed at the defendant hospital on September 24, 1962. Following the operation, when plaintiff continued to have difficulty and her condition did not improve, she consulted other physicians who discovered a foreign substance in the abdominal cavity. On April 20, 1963 the defendant doctor performed a second operation during which he removed a laparotomy square from under plaintiff's abdominal wall.

The petition pleads the doctrine of res ipsa loquitur and alternatively alleges joint and concurrent negligence on the part of the doctor, the hospital and the latter's employees, negligence on the part of the employees allegedly being due to rendering an incorrect count of laparotomy squares. In its answer the hospital has alleged facts sufficient to support an application of the doctrine of charitable immunity as to that defendant. However, no proof was offered to support those allegations and the hospital has not urged the doctrine either in the trial court or in this court. Nor are we presented with any issue concerning the sufficiency or insufficiency of the amount awarded.

In this court appellants contend: (1) the record contains no evidence of an incorrect count; (2) liability on the part of the hospital, and consequently its insurer, attaches only for administrative acts, and not for medical acts, of hospital employees, and the laparotomy count is a medical act; (3) for the purposes of plaintiff's initial abdominal operation, the employees of the hospital became the borrowed servants of the defendant doctor and therefore the hospital and its insurer are not responsibile for any negligence by such employees during the surgery; (4) the exception of nonjoinder of indispensable parties plaintiff should have been maintained and the suit dismissed; (5) plaintiff's settlement agreement with the doctor's insurer changed the position of the doctor from joint tort-feasor to coadventurer and therefore is contrary to public policy; and (6) alternatively, if it be determined that there is liability on the part of appellants, they are entitled to a credit for the amount received by the plaintiff under the settlement agreement between herself and the doctor's insurer.

Testimony relative to laparotomy squares and the counting thereof was given by the defendant doctor, the chief of surgery at the defendant hospital and two employees of the hospital (the circulating nurse and the scrub nurse). That testimony reveals: Laparotomy squares, commonly referred to as 'lap squares', are 12 inch by 12 inch pieces of gauze made of radiopaque material with strings attached. The hospital purchases lap squares from a surgical supply house in cartons of two dozen each. These are sterilized in the hospital and placed in units of twelve with a rubber band around each unit by the hospital linen room employees. Then the units are delivered to the operating room in sufficient numbers for use in all operations scheduled for the day. In the operating room the units are individually counted by the circulating nurse and the scrub nurse prior to the operations. The surgeon's presense is neither necessary nor important in this count. The number of squares to be used in a particular operation is recorded on a piece of paper before that operation commences. Just before the surgeon is ready to close the incision another count is made by the same nurses, either when ordered by the surgeon or, in accordance with the hospital's regular procedure, on the initiation of the nurses themselves. This count is made by the circulating nurse and the scrub nurse together, the former counting used laps which have been discarded and the latter counting the remaining unused laps. The count also includes any lap which the doctor may still have in hand. If this count falls short of the original, a search is made for the missing lap or laps until all are accounted for. The lap count is then recorded in the hospital records as 'correct'. This was the procedure followed during the course of plaintiff's operation. On that occasion the lap count was recorded as correct. After that operation the procedure was changed. It now includes an additional count and the record reflects the actual number of squares used.

The record further reveals:

The defendant doctor was a visiting surgeon at the hospital. He was in complete charge of all of the operating room personnel during surgery. However, the counting of laps is not considered to be his responsibility, this procedure being part of the duties set for the nurses by the hospital. In the instant case the doctor did not recall the lap count in connection with plaintiff's initial operation. He did recall attempting to ascertain if anything remained in her abdomen before closure. He did this by passing his hand therein, but he failed to detect anything.

Subject to the surgeon's orders, the circulating nurse was in charge of the operating room. During plaintiff's initial surgery the person who held that position was a registered nurse referred to in all the testimony as extremely competent. The scrub nurse, also referred to as a surgical nurse or surgical technician, prepares the gowns, gloves, instruments, laps and sponges for surgery and participates in the lap count. She works in the 'sterile field', which is in the area of the operating table assisting the surgeon. The scrub nurse in the instant case was neither a registered nor a practical nurse. She had worked 'on and off' in hospitals and had three months specialized training at the defendant hospital. She had no recollection of what had happened during the operation in question and testified principally to the usual method of counting laps. She was described by the hospital's chief of surgery as a very good scrub nurse and completely qualified.

The regular procedure for counting lap squares in effect at the time of the operation had been established by the hospital staff and the nurses were required to follow this procedure.

We do not agree with appellants' first contention, that the record contains no evidence of an incorrect count. The question of whether the unfortunate incident was caused by an incorrect count was one of fact determined by the jury adverse to appellants and there is sufficient evidence to support that finding. It is true there is no testimony directly to the effect that an incorrect count was made. But a correct lap count must be one in which all the squares used are accounted for. Here, although the count was recorded as correct, it is quite clear that a lap square was allowed to remain in plaintiff's abdominal cavity as a result of the operation (it was removed by the second operation), and there is no evidence at all that an additional square was used by the doctor after the count was taken.

With regard to appellants' second contention, we agree that, insofar as the hospital and its insurer are concerned, liability attaches only for administrative acts and not for medical acts of hospital employees. Jordan v. Touro Infirmary, La.App., 123 So. 726; Messina v. Societe Francaise de Bienfaissance, etc., infra. However, we do not agree that the lap count in the instant case was a medical act. As this court said in D'Antoni v. Sara Mayo Hospital, La.App., 144 So.2d 643, 646, in determining whether or not a particular act is of a professional nature we must look, not to the title or the character of the party performing that act, but to the act itself.

As pointed out in the concurring opinion in Messina v. Societe Francaise de Bienfaissance, etc., La.App., 170 So. 801, 806:

'If the act required to be done does not require the exercise of that special skill, or that special discretion, which has supposedly been developed by the training, and is an act which may just as well be done by an unskilled or untrained employee, or if the error or mistake results not from improper exercise of professional judgment, but merely from nonprofessional mistake, then liability should be held to result.

The distinction is well illustrated in Stanley v. Schumpert et al., 117 La. 255, 41 So. 565, 6 L.R.S. (N.S.) 306, 116 Am.St.Rep. 202, 8 Ann.Cas. 1044. There the physician in charge of the patient had ordered that the nurse 'drop some...