Druilhet v. Comeaux

• Decision Date: 30 July 1975
• Docket Number: No. 5081,5081
• Citation: 317 So.2d 270
• Parties: William R. ORUILHET, Individually, et ux., Plaintiffs-Appellants, v. Dr. Paul COMEAUX et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 270

317 So.2d 270

William R. ORUILHET, Individually, et ux., Plaintiffs-Appellants, v. Dr. Paul COMEAUX et al., Defendants-Appellees.

No. 5081.

Court of Appeal of Louisiana, Third Circuit.

July 30, 1975.

Rehearing Denied Aug. 28, 1975.

Raleigh Newman, Lake Charles, for plaintiffs-appellants.

Raggio, Farrar, Cappel & Chozen, by R. W. Farrar, Jr., Lake Charles, for defendants-appellees.

Before FRUGE , DOMENGEAUX and WATSON, JJ.

DOMENGEAUX, Judge.

This is a malpractice suit by the plaintiff-husband, individually and as head and master of the community, and his wife, for damages allegedly sustained as a result of a sponge or other foreign object being left internally in the plaintiff-wife during childbirth. Defendants in the suit are Dr. Paul Comeaux (the physician who delivered plaintiff-wife's child); Sorkow, Shorts, and Comeaux, Drs., Ltd. (the professional medical corporation of which Doctor Comeaux is a member); Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital; and St. Paul Fire & Marine Insurance Company (malpractice insurer for the defendants). From a jury verdict in favor of the defendants, the plaintiffs have appealed.

The plaintiff, Mary Ellen Druilhet, gave normal birth to her third child on September 7, 1971, in Lake Charles Memorial Hospital. The attending physician was Dr. Paul Comeaux, a general practitioner. Subsequent to birth the plaintiff returned to Doctor Comeaux for routine three and six week examinations.

A pelvic examination was subsequently performed by Dr. Eli Sorkow (a general practitioner and member of the medical corporation of which Doctor Comeaux was attached) on October 28, 1971. On this occasion the doctor removed from the entrance of plaintiff's vagina what he opined to be a surgical sponge (a 4 4 inch folded piece of sterilized gauze).

Subsequently the plaintiff-wife was seen on December 7, 1971, by Dr. James T. Austin, Jr., a local obstetrician and gynecologist, complaining of abdominal and vaginal pain. Mrs. Druilhet was treated by Doctor Austin for the following nine-month period. She was also experiencing extreme nervousness during this time and after prescribed medication failed to alleviate her trouble, she was referred to the local mental health center. Doctor Austin finally advised the plaintiff that she should have a hysterectomy operation because of her continued severe pain. Said operation was performed on August 2, 1972.

This suit was filed on September 6, 1972, alleging that the defendants were responsible for severe complications following childbirth as a result of the sponge or foreign object being left in her vagina and/or womb. It was contended that in addition to sustained pain and suffering the object caused infection in her vagina and/or womb, the occurrence of a tumor, and finally, the hysterectomy. Plaintiff-husband sought medical expenses and damages for the loss of normal marital relations, as well as the fact that the couple could have no more children.

A jury trial was also requested in plaintiffs' initial petition. Subsequently, during the voir dire of prospective jurors plaintiffs' counsel was prevented from asking the jurors as to whether or not they would accept the law as to the doctrine of res ipsa loquitur, specifically. The court denied same on the basis that questions relating to the judge's charges are not the proper subject for voir dire, the purpose being to determine whether or not any partiality exists on the part of the jurors.

Following trial, counsel for the plaintiffs and defendants presented closing arguments to the jury and the district judge gave instructions to the jury as to the laws applicable and the form of the verdict. Said charge included the doctrine of res ipsa loquitur and no objections were made to the charge.

The jury returned its special verdict indicating the actions of the defendants did not constitute negligence which was the proximate cause of plaintiff-wife's alleged injuries. Plaintiffs subsequently applied for a new trial which was also denied.

The following issues are raised on this appeal: (1) Whether one or more of the defendants were negligent? (2) If so, whether such negligence was a cause in fact of the injuries complained of? (3) Whether counsel for the plaintiffs should have been allowed to question the jurors on voir dire regarding the doctrine of res ipsa loquitur, and (4) Whether plaintiffs should have been granted a new trial?

The first issue we will consider is the alleged negligence of the defendants.

The record clearly shows that a foreign object was removed from plaintiff-wife's vaginal tract on October 28, 1971, by Dr. Eli Sorkow. Although the object in question was immediately disposed of and testimony reflects it 'could have been' a Tampax, cotton, etc., Doctor Sorkow explicitly stated that in his opinion the object removed was a surgical sponge. His testimony is not refuted. The evidence further preponderates to the effect that the sponge was left internally in Mrs. Druilhet's vaginal tract ¹ during the hospital delivery of her child.

Although there was testimony to the effect that sponges are left internally in patients for an extended period on occasion by physicians who practice obstetrics, the same testimony confirmed that such was unintentional and not supposed to occur. Thus it must be said that when such an occurrence takes place the responsible physician has not exercised the standard of care normally practiced under similar circumstances by members of his profession in good standing in the same locality.

Failure to remove the sponge from plaintiff's vaginal tract immediately following delivery was an untoward or unusual event such as to bring into application the doctrine of res ipsa loquitur. See: Wells v. Woman's Hospital Foundation, 286 So.2d 439 (La.App.1st Cir. 1973), writ denied, 288 So.2d 646 (La.1974).

Therefore the burden of proof shifted to the defendant(s) to prove lack of negligence. Doctor Comeaux was the attending physician during plaintiff-wife's childbirth and as a result was responsible for overseeing the procedures in the delivery room. No real contention is made by the plaintiffs that anyone other than Doctor Comeaux was the party who left the sponge inside the plaintiff-wife. The doctor testified essentially that he could not recall the particular delivery and did not believe he left the sponge, but could not deny that he might have done so. Under the foregoing facts, we conclude that the doctor failed to sustain the burden of showing his freedom from negligence.

As in any other tort action, however, such negligence must be shown to have a causal relationship to the injuries complained of by the plaintiff. See Margiotta v. Trachtman, 310 So.2d 151 (La.App.4th Cir. 1975); Davis v. Southern Baptist Hospital, 293 So.2d 238 (La.App.4th Cir. 1974). The jury found causality lacking and we agree.

In this regard, we turn first to the testimony of Mrs. Druilhet, who stated essentially: that prior to her last child being born she had not experienced female problems; that immediately following her return home from the hospital she began to have pains continuously; that she complained of pain to Doctor Comeaux at both the three-week and six-week examinations; and that on the date when Doctor Sorkow removed the foreign object she experienced pain during the removal thereof and additionally complained of pain to the doctor. She further contended that about three weeks following delivery she had a 'falling' sensation in the area of her female organs and called Doctor Comeaux to inform him of same. The doctor allegedly told the plaintiff that he thought her womb had fallen, for her to go to bed and place her legs in the air, and that if the womb did not go back into place an operation would have to be performed. Plaintiff-wife further testified that she continued to have pain throughout her visits to Doctor Austin and on one occasion inquired from the doctor if the sponge could have had something to do with her condition. Allegedly the doctor replied in the affirmative.

The foregoing testimony of Mrs. Druilhet is, however, contradicted throughout the record.

The plaintiff had been a long-time patient of Drs. Sorkow, Shorts, and Comeaux. In March of 1968 she had complaints of pain in the vagina and of bloody discharges. In December of 1968 she complained of irregular menstrual periods, nausea, and nervousness.

Doctor Comeaux made no notation of any complaints of pain by the plaintiff upon her three and six week examinations. The doctor did not recall the conversation regarding the 'falling womb'.

Doctor Sorkow testified that he made no notation of pelvic pain at the time he removed the sponge from the plaintiff and indicated in all probability he would have noted it, had it been present. He further opined that the sponge had no adverse effects on the plaintiff and no bearing upon plaintiff's subsequent hysterectomy. The doctor compared the sponge to Tampax and noted that a number of his patients had left Tampax in their vaginal area for a three or four month period without any damage, the only effect being a feeling of 'fullness' and foul smelling discharge.

Dr. James Austin testified that upon initial examination plaintiff told him she had been having sharp lower abdominal and vaginal pains Since her child was seven weeks old. He also testified that when asked if the sponge had any correlation to her pains he replied in the Negative. Doctor Austin further opined that plaintiff's pains were possibly caused from degeneration of a small fibroid tumor in her uterus following pregnancy, which was a very common condition (although no tumor was found when the hysterectomy operation was performed) or inflammation and infection of fallopian tubes. He further opined that the sponge had no causal relationship with the suspected tumor or any uterine infection. In addition he stated that plaintiff-wife had a uterine prolapse...