Davis v. Kerr
| Citation | 239 Pa. 351,86 A. 1007 |
| Decision Date | 24 February 1913 |
| Docket Number | 138 |
| Parties | Davis, Appellant, v. Kerr |
| Court | Pennsylvania Supreme Court |
Argued January 13, 1913
Appeal, No. 138, Oct. T., 1912, by plaintiffs, from judgment of C.P., Allegheny Co., Third T., 1909, No. 465, on verdict for defendant in case of John Davis and Gertrude Davis, his wife, v. Dr. J. P. Kerr. Reversed.
Trespass to recover damages for personal injuries. Before FRAZER, P.J.
The facts are stated in the opinion of the Supreme Court.
The defendant, who was a surgeon, in performing an operation on Mrs. Davis, one of the plaintiffs, left a gauze pad or sponge in the wound, which caused pain and suffering, and ultimately made necessary a second operation. The plaintiffs charged negligence. The defense was that it was customary for the attending nurses to account for all the sponges and that defendant had relied on them. The court in his general charge said: (3)
The court answered one of defendant's points as follows "If the jury find from the evidence that a sponge, or other material of like nature, was left in the abdomen of Mrs. Davis, at the time of the operation, such fact alone is no evidence of negligence on the part of the defendant."
Answer "Affirmed." (7)
The jury found a verdict for the defendant, on which judgment was subsequently entered. Plaintiff appealed.
Errors assigned were, inter alia, (3-7) the above instructions to the jury.
The judgment is reversed with a venire facias de novo.
Jesse H. Wise, with him William E. Minor, Joseph W. Walters and Frank P. Corbin, for appellants. -- The court erred in his charge to the jury and in his answers to the points submitted; in saying to the jury that the defendant was not liable, if the mistake in leaving one of the pads therein was a mistake of the nurses, who assisted in counting at the operation and who made an error in the count of the sponges and if the defendant followed the usual custom in vogue in hospitals in having the nurses court the sponges and if the jury believed that custom was a reasonable one: McCandless v. McWha, 22 Pa. 261; Bonnet v. Foote, 107 Pac. Repr. 252; Reynolds v. Smith, 127 N.W. 192; Gillette v. Tucker, 65 N.E. Repr. 865; Harris v. Fall, 177 Fed. Repr. 79; Ruth v. Johnson, 172 Fed. Repr. 191; Akridge v. Noble, 114 Ga. 949 (41 S.E. Repr. 78); Detweiler v. Groff, 10 Pa. 376; Olmsted v. Gere, 100 Pa. 127; Yardley v. Cuthbertson, 108 Pa. 395.
William A. Challener, with him Clarence Burleigh, for appellee, cited: Samuels v. Willis, 19 Am. & Eng. Ann. Cases, 188; English v. Free, 205 Pa. 624; McCandless v. McWha, 22 Pa. 261; Wohlert v. Seibert, 23 Pa.Super. 213.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
The plaintiff, Mrs. Gertrude Davis, with a view of having a surgical operation performed on her person by the appellee, a professional surgeon, upon the latter's suggestion and advice and with his assistance, secured accommodations at Mercy Hospital in the City of Pittsburgh, where the operation was performed by appellee 24th July, 1908. The plaintiff was suffering from tubercular peritonitis. To reach the diseased part an incision into the abdomen was required sufficient in length to admit of the hand of the operator being introduced for the manipulation of the parts therein enclosed and affected. In every such operation pads or sponges are introduced through the wound to take up the secretions, the flow of blood, foreign matter if any, and to wall off the intestines from the field of operation. These pads or sponges are all supposed to be removed before the closing up of the incision. But in this case one of the sponges inserted, a piece of gauze about twelve inches in length, through somebody's mistake or negligence, was not removed, but was allowed to remain in the abdomen after the wound had been sewed up. Though plaintiff remained in the hospital some two months under appellee's care after the operation, the mistake was not discovered until more than nine months following the operation, when a second operation was required for the removal of the sponge that had been overlooked. This action was brought by Mrs. Davis and her husband against the surgeon who performed the operation charging him with negligence in failing to remove the sponge in the first instance. In view of the disposition we propose to make of the appeal reference need be made to but a single feature of the case as disclosed by the evidence. Mercy Hospital is a public hospital, supported in part by State appropriations, and is under the charge of an order known as Sisters of Charity. The defendant was neither a director nor was he one of its staff, though he frequently performed operations there. When he or other surgeons operated in this hospital the nurses required for assistance were assigned by the Mother Superior. It is a custom prevailing universally in hospitals of this character when an operation such as this is to be performed, to commit to the nurses assigned the duty of preparing in advance, by sterilization and otherwise, an adequate supply of sponges, carefully counted, to be taken into the operating room. These nurses having in charge the sponges attend upon the operation. It is the business of one having custody of the sponges to hand them to the operating surgeon as required, while it is the duty of the other to receive them from the operating surgeon after each has served its purpose. The removed sponges speak for themselves as to number. When the operation has been concluded comparison is made by the nurses of those removed with those shown to have been introduced. In this case the defendant, preparatory to closing up the wound he had made, inquired of the nurses whether their count tallied and whether all the sponges had been removed, and it was only upon their replying affirmatively that he closed the wound. The evidence will support no other conclusion than that the defendant was misled by the mistaken count of the nurses. Two questions were left to the jury to pass upon: first, the credibility of the witnesses who testified that defendant before closing the wound had inquired of the nurses whether all the sponges had been removed; and, second, whether the general system or practice of permitting the handling and counting of sponges as we have above indicated was reasonable. The verdict of the...
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