Easterling v. Walton

• Decision Date: 08 September 1967
• Citation: 156 S.E.2d 787,208 Va. 214
• Court: Virginia Supreme Court
• Parties: Joyce Hall EASTERLING v. Dr. W. W. WALTON.

Page 787

156 S.E.2d 787

208 Va. 214

Joyce Hall EASTERLING v. Dr. W. W. WALTON.

Supreme Court of Appeals of Virginia.

Sept. 8, 1967.

Robert T. Winston, William J. Sturgill, Norton (Edwin G. Shaffer, Wytheville, Kime & Jolly, Salem, Greear, Bowen, Mullins, Winston & Sturgill, Norton, on brief), for plaintiff in error.

John B. Spiers, Jr., Radford (Spiers, Spiers & Mink, Radford, on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

I'ANSON, Justice.

This action was instituted by Joyce Hall Easterling, plaintiff, against Dr. W. W. Walton, defendant, to recover damages for injuries sustained through the alleged negligence of the defendant in failing to remove a laparotomy pad (lap pad) inserted in her abdomen during the course of surgery performed upon her and his failure to render proper post-operative care.

At the conclusion of plaintiff's evidence the trial court struck out her evidence on the issue of defendant's negligence in failing to remove the lap pad, but permitted the jury to consider the issue of whether or not the defendant was negligent in the post-operative care of plaintiff. They jury returned a verdict for the defendant, upon which the trial court entered judgment, and plaintiff is here on a writ of error.

Plaintiff presented the following evidence: A Caesarean operation was performed upon her in 1950 by Dr. E. J. Benko. She recovered from this operation and was in good health until 1961 when she was injured in an automobile accident. Later a hernia developed in the line of the incision made in her Caesarean operation, and on February 11, 1963, she was operated upon by the defendant in the Pulaski Hospital for repair of the hernia and removal of her appendix.

Shortly after the hernia operation plaintiff's abdomen became swollen and sore and she developed frequent headaches. In March the incision broke open. Plaintiff noticed a piece of white string in the incision that looked like gauze and pulled it out with a pair of tweezers. Unable to contact defendant, the plaintiff consulted another doctor who sent her to a hospital in Norton, Virginia, where an examination indicated some foreign substance in her abdomen. She remained in the Norton hospital for about fourteen days. Plaintiff's sister informed defendant of the results of the examination, and an appointment was made for plaintiff to see him. Defendant examined plaintiff, gave her some medicine, and told her she could return home and that she ought to be well within a year. X-rays were not taken.

Plaintiff's condition did not improve, and on September 3, 1964, she was examined by a Dr. Hanson. X-rays taken by Dr. Joseph Straughan, a physician and radiologist, indicated that there was a foreign substance in the middle of plaintiff's pelvis. He 'thought it was a marker in a surgical sponge.'

On October 4, 1964, Dr. V. L. Liszka operated upon plaintiff and found a surgical lap pad in her abdomen surrounded by an abscessed cavity. The lap pad was found in the same area of the operation performed by defendant. Dr. Liszka was of the opinion that the lap pad was left in plaintiff's abdomen during the operation performed by defendant in 1963.

The deposition of Dr. Benko, who performed the Caesarean section in 1950, was read to the jury. He examined the lap pad removed by Dr. Liszka, and expressed the opinion that it was not left in plaintiff during the Caesarean operation.

Dr. Straughan testified that it was not accepted medical pracice to leave a lap pad in a patient's abdomen.

Virginia Mabrey, plaintiff's sister and a registered nurse at the Pulaski Hospital, was not in the operating room when plaintiff was operated upon by defendant. She testified, however, that it was customary at the hospital for two nurses, a scrub nurse and a circulating nurse, to keep a count of the lap pads put in and taken out of the wound during an operation; that the surgeon puts the lap pads in the wound and he or a physician assisting him in the operation takes them out at the surgeon's direction; that the surgeon is the 'captain of the ship' and has complete control over the operation and the direction of all persons assisting him in the operating room; and that the surgeon surveys the wound before closing it.

Plaintiff contends that the trial court erred in holding that the Res ipsa loquitur doctrine was not applicable, in requiring her to produce expert evidence to establish defendant's negligence, in striking out her evidence on the issue of negligence in leaving the lap pad in her body, in not granting her motion for a mistrial, and in permitting defendant's counsel to examine her on certain irrelevant and prejudicial matters.

In certain cases a plaintiff may invoke the Res ipsa loquitur doctrine to establish a breach of duty owed him by a legal inference of negligence from proved facts. The doctrine applies in negligence cases where the means or instrumentality which caused an injury is in the exclusive possession and control of the person charged with the negligence, and such person has, or should have had, exclusive knowledge of the way this instrumentality was used, and the injury would not ordinarily have occurred if those who have the management and control had used proper care. Danville Com. Hospital v. Thompson, 186 Va. 746, 757--758, 43 S.E.2d 882, 886--887, 173 A.L.R. 525, 531 (1947); Riggsby v. Tritton, 143 Va. 903, 907--908, 129 S.E. 493, 495, 45 A.L.R. 280, 283 (1925).

'The doctrine of Res ipsa loquitur is an evidential presumption, not to be invoked to overcome evidence, but to be applied in its absence.' Chesapeake & O. Ry. Co. v. Tanner, 165 Va. 406, 420, 182 S.E. 239, 245 (1935); Norfolk Coca-Cola Wks. v. Krausse, 162 Va. 107, 115, 173 S.E. 497, 499 (1934).

The application of the doctrine, however, does not relieve the plaintiff of the burden of proof to establish defendant's negligence. Virginia Elec. & P. Co. v. Lowry, 166 Va. 207, 218, 184 S.E. 177, 181 (1936).

In Hines, Director General v. Beard, 130 Va. 286, 293--294, 107 S.E. 717, 719 (1921); and Danville Com. Hospital v. Thompson, supra, 186 Va. at 759--760, 43 S.E.2d at 887, 173 A.L.R. at 532, this court quoted with approval from the oft-quoted case of Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas.1914D, 905, the following:

"In our opinion, Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence, where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff."

In Danville Com. Hospital v. Thompson, supra, the action was against the hospital for a burn received by an infant shortly after her birth while she was in the complete possession and control of the hospital. There we held that the doctrine of Res ipsa loquitur was applicable.

We have held, in accordance with the universally accepted rule, that the Res ipsa loquitur doctrine is not to be applied in certain malpractice cases against physicians and dentists, primarily because as a matter of common knowledge and experience a bad result affords no presumption of...