Dietze v. King

• Decision Date: 23 June 1960
• Docket Number: Civ. A. No. 2581.
• Parties: Margaret DIETZE, Plaintiff, v. M. Kirwan KING, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

184 F. Supp. 944

Margaret DIETZE, Plaintiff, v. M. Kirwan KING, Defendant.

Civ. A. No. 2581.

United States District Court E. D. Virginia, Norfolk Division.

June 23, 1960.

Sidney H. Kelsey, Norfolk, Va., for plaintiff.

Williams, Cocke, Worrell & Kelly, Thos. R. McNamara, Norfolk, Va., for defendant.

WALTER E. HOFFMAN, District Judge.

This is an action for malpractice in which the plaintiff contends that defendant, an admittedly capable surgeon enjoying an outstanding reputation in this community, negligently left a sponge in the operative wound following a radical mastectomy for the removal of a breast cancer, and thereafter negligently failed to render proper post-operative treatment.

The operation was performed on January 24, 1957. Plaintiff remained in the hospital until February 2, 1957, and subsequently visited defendant's office on numerous occasions until March 23, when she, with knowledge of defendant, left Norfolk and, after spending approximately ten days in Vermont, sailed for England. Following her arrival in England, X-rays were taken and the presence of a linear opaque shadow of metallic density was noted in the upper part of the right axilla. She was immediately hospitalized and the surgical sponge was removed from the apex of the axilla on April 17, 1957.

The issues presented may be generally summarized and discussed as follows:

(1) Under the law of Virginia, does the doctrine of res ipsa loquitur apply in cases involving a surgical sponge inadvertently left in the body following an operation of this type?

(2) Assuming the application of res ipsa loquitor doctrine, what is the effect of same in Virginia?

(3) Has negligence been proven under the peculiar facts and circumstances of this case?

(4) Was the defendant guilty of negligence in failing to render proper post-operative treatment subsequent to March 21, 1957, when defendant noted the possibility of a foreign body in the operative wound and took no action thereafter and, if such was negligence, what damages should be awarded the plaintiff?

Applicability of Res Ipsa Loquitur Doctrine

While there are no Virginia decisions covering a situation in which a physician has left a foreign body in an operative wound, it seems clear from the tenor of other cases that Virginia would, under such circumstances, invoke the res ipsa loquitur doctrine. Absent the application of res ipsa loquitur, the rule in Virginia is clear that the negligent practice of a physician in the diagnosis of a patient can be established only by expert testimony, and if the proof leaves it equally probable that a bad result may have been due to a cause for which the defendant was not responsible as to a cause for which he was responsible, the plaintiff cannot recover. Reed v. Church, 175 Va. 284, 8 S.E.2d 285; Hunter v. Burroughs, 123 Va. 113, 96 S.E. 360; Fox v. Mason, 139 Va. 667, 124 S.E. 405; Alexander v. Hill, 174 Va. 248, 6 S.E.2d 661. But Virginia recognizes that a malpractice case may fall within the scope of res ipsa loquitur, thus eliminating the necessity of procuring expert testimony in the initial stages of proof. Henley v. Mason, 154 Va. 381, 153 S.E. 653.

A clearer case for the application of the doctrine in an action for malpractice cannot be shown. There are some authorities to the effect that the surgeon's failure to remove a sponge or other foreign substance from an incision constitutes negligence per se,¹ but the general rule is that the jury, or trier of fact, should be left to determine whether such failure is tantamount to negligence.² In the absence of a controlling Virginia decision, it is believed that a factual issue is presented under such circumstances without the aid of expert testimony. The very nature of the omission in leaving a sponge or other foreign body in the operative wound following an open operation commands the invocation of the doctrine of res ipsa loquitur.

Defendant relies upon Hunter v. Burroughs, supra, which pertains to the use of X-ray. The application of X-ray to a patient involves a standard with respect to the technique or mechanical operation of the apparatus, as well as professional skill and knowledge as to the diagnosis and treatment. We know, as a matter of common knowledge, that in the treatment of cancer and other diseases it is often necessary to use X-ray extensively, and in some instances X-ray burns may be the result. To apply the doctrine of res ipsa loquitur in the use of X-ray would do violence to the medical profession and subject practitioners to a handicap too hazardous to carry. The standard for the measure of skill exercised by the physician or surgeon should not, in such a situation, be left to the whim or caprice of a jury, or trier of fact, upon non-expert evidence.

However that may be, all parties concede that in a radical mastectomy operation no sponge or other foreign substance should be left in the operative wound. The result does not per se establish negligence, but it does permit an inference of negligence.

The Effect of Res Ipsa Loquitur in Virginia

In Hamilton v. Southern Ry. Co., 4 Cir., 162 F.2d 884, Judge Soper discussed the effect of the res ipsa loquitur doctrine in Virginia. The Virginia authorities are considered at length and need not be repeated.³ In short, the application of the doctrine results in the following steps:

(1) It avoids a directed verdict for the defendant at the close of plaintiff's evidence as an inference of negligence is permitted, but, even though the defendant offers no evidence, a verdict for the plaintiff does not necessarily follow.

(2) It avoids a directed verdict for the defendant at the close of all of the evidence, unless the defendant offers uncontradicted evidence which, if true, explains the accident and shows that it was not due to negligence on defendant's part, or that the question of negligence is in equipoise.

(3) It never has the effect of shifting the burden of proof as to negligence. Thus the inference or presumption of negligence raised by the application of the doctrine is entirely overcome where properly refuted by sufficient evidence.

The present case was heard by the Court without a jury. The issue of negligence remains a factual matter upon a consideration of all of the evidence.

The Operative Negligence in This Case

The difficulty with plaintiff's theory as to defendant's operative negligence is that she relies heavily upon the "result." Of course it is not the practice in the community for competent surgeons to leave a sponge in the operative wound following an open operation. There is, however, evidence to the effect that sponges are sometimes left in the body after an operation, even though the patient is in the hands of an expert surgeon.

The defendant did not cause a sponge count to be taken at the time of plaintiff's operation. The record does not reflect that, with respect to a radical mastectomy, sponge counts are customarily made by equally competent surgeons. The result of this case may have brought about a change of practice on the part of surgeons in this community—and undoubtedly the sponge count, although not perfect, affords an added protection to the patient—but we are here dealing with the highest degree of diligence and skill which is common to and exercised by the average competent surgeon as of the date of the operation. The fact that a few surgeons do use the sponge count, while a substantial majority did not at the time in question, falls short of establishing a common practice in the field.

Defendant's failure to remove the surgical sponge was due, in the main, to two basic reasons. In the first place, the sponge was placed in a small "pocket" in the arm pit and was essentially obscured by muscles. More important, however, is the fact that, at about the midway point of the operation, plaintiff's blood pressure dropped to 90/70 which is borderline for shock. Following the operation, plaintiff did go into actual shock when her blood pressure fell to 70/50. Realizing the danger of death on the operating table, defendant reduced the average time of the operation by approximately 20 minutes. His prime purpose at that stage of the operation was to complete the same and get the patient off the operating table as early as possible. With the patient in poor condition, the requirement of an intensive search for a surgical sponge must be balanced with the danger of death, particularly when we know that a sponge remaining in the body in this operation will not cause death.

The defendant and his assistants looked for the sponges. That they did not look or feel enough is apparent from the result. But under the circumstances of this particular operation a finding of negligence does not necessarily follow. Other operations, or like operations not complicated by the patient's condition, could bring about a contrary conclusion. On this issue of fact, the Court finds that negligence has not been established by this record.

Negligence in Post-Operative Treatment

Following plaintiff's discharge from the hospital on February 2, 1957, she made numerous visits to defendant's...