Fieux v. Cardiovascular & Thoracic Clinic, P.C.

• Decision Date: 14 April 1999
• Citation: 159 Or.App. 637,978 P.2d 429
• Parties: Maurice FIEUX, Appellant, v. CARDIOVASCULAR & THORACIC CLINIC, P.C., George R. Wilkinson, M.D., and Rogue Valley Medical Center, Respondents. (9534-05L3; CA A99966)
• Court: Oregon Court of Appeals

Page 429

978 P.2d 429

159 Or.App. 637

Maurice FIEUX, Appellant, v. CARDIOVASCULAR & THORACIC CLINIC, P.C., George R. Wilkinson M.D., and Rogue Valley Medical Center, Respondents.

(9534-05L3; CA A99966)

Court of Appeals of Oregon.

Argued and Submitted Sept. 3, 1998.

Decided April 14, 1999.

Stephen C. Hendricks, Portland, argued the cause and filed the briefs for appellant.

Benjamin M. Bloom, Medford, argued the cause for respondents Cardiovascular & Thoracic Clinic, P.C., and George R. Wilkinson, M.D. With him on the brief was Hornecker, Cowling, Hassen & Heysell, L.L.P.

Thomas F. Armosino, Medford, argued the cause for respondent Rogue Valley Medical Center. On the brief were John R. Huttl and Frohnmayer, Deatherage, Pratt, Jamieson, Clarke, & Moore, P.C.

Before De MUNIZ, Presiding Judge, and LANDAU and WOLLHEIM, Judges.

WOLLHEIM, J.

Plaintiff filed this medical malpractice action against his surgeon and the hospital (defendants) after a clamp was left behind his heart following open heart surgery. Plaintiff relied on res ipsa loquitur to infer negligence without using expert medical testimony to establish the standard of care. The trial court found that, without expert medical testimony, it could not conclude that leaving a clamp in plaintiff's chest would not have happened in the absence of negligence on the part of defendants. The trial court granted defendants' motions for directed verdict, and plaintiff seeks a reversal of the judgment. We reverse and remand.

The parties stipulated to the following facts. Defendant Dr. Wilkinson (surgeon) performed open heart surgery on plaintiff at Rogue Valley Medical Center (hospital). Three surgical nurses (nurses) were supplied by the hospital. During the surgery, a serrefine clamp ¹ slipped off a vein and fell behind plaintiff's heart. During his final inspection at the end of surgery, the surgeon inspected the grafts and suture lines but overlooked the serrefine clamp. At the operation's conclusion, plaintiff's chest was closed and plaintiff was returned to the hospital recovery room. A routine x-ray shortly thereafter revealed the clamp behind plaintiff's heart. A few hours after the first surgery, plaintiff underwent a second surgery where his sternum was again retracted and the serrefine clamp was removed. There were no further complications. The second operation would not have been necessary if the serrefine clamp had been removed during the initial surgery.

At the time of surgery, it was hospital policy to account for sponges and needles, but there was no policy or procedure to account for surgical "instruments." A serrefine clamp is considered an instrument. The surgeon stated in his deposition that it was standard operating procedure not to leave instruments, sharp needles, or sponges in a patient. The surgeon also stated it was standard operating procedure for the surgical team, including the nurses, to account for the instruments "in general terms." However, the nurses did not place the clamp inside plaintiff's chest. Finally, the surgeon admitted that it is difficult to lose large instruments in the pericardial sac, that the area around the heart is usually inspected carefully before and after surgery, and that the clamp was in a place where he did not see it.

Plaintiff asserted that the surgeon and nurses were negligent and that the hospital was vicariously liable for the alleged negligence. ² The trial court, however, granted defendants' motions for directed verdict at a pretrial hearing after reviewing the stipulated facts and plaintiff's indication that he would not offer expert medical testimony. The trial court determined that plaintiff's evidence did not, as a matter of law, present a jury question under res ipsa loquitur.

Res ipsa loquitur is a rule of evidence whereby circumstantial evidence may be used to prove ultimate facts. McKee Electric Co. v. Carson Oil Co., 301 Or. 339, 348, 723 P.2d 288 (1986). More specifically, it allows the jury to infer both negligence and causation, even in medical malpractice actions, if " 'the accident which occurred * * * is of a kind which more probably than not would not have occurred in the absence of negligence on the part of the defendant.' " Id. at 353, 723 P.2d 288 (quoting Watzig v. Tobin, 292 Or. 645, 649, 642 P.2d 651 (1982)).

Whether res ipsa loquitur applies is a matter of law to be determined by the court. Cummins v. City of West Linn, 21 Or.App. 643, 651, 536 P.2d 455 (1975). A plaintiff must establish the fundamental elements of the doctrine before an inference of negligence or causation will be permitted, namely, that there is an injury, that the injury "is of a kind which ordinarily does not occur in the absence of someone's negligence," and that the negligence that caused the event was more probably than not attributable to a particular defendant or defendants. Umpqua Aquaculture, Inc. v. Ron's Welding, 111 Or.App. 220, 223-24, 826 P.2d 31 (1992) (quoting Barrett v. Emanuel Hospital, 64 Or.App. 635, 638, 669 P.2d 835, rev. den. 296 Or. 237, 675 P.2d 491 (1983)). In reviewing an order for a directed verdict, we view the evidence and all reasonable inferences in the light most favorable to plaintiff to determine whether plaintiff has presented sufficient evidence on those elements to submit the matter to a jury. Turnbow v. K.E. Enterprises, Inc., 155 Or.App. 59, 65, 962 P.2d 764 (1998).

Defendants argue that the stipulated facts do not establish the elements necessary to permit the inference of negligence allowed under res ipsa loquitur. First, they argue that plaintiff's proposed testimony is insufficient to prove his damages. Defendants also argue that expert medical testimony is required to establish the standard of care from which a jury may infer that it is more probable than not (1) that the injury would not have occurred without someone violating that standard of care and (2) that defendants were negligent. Plaintiff maintains that the evidence he presented was competent to establish his injury and the standard of care from which defendants' negligence could be inferred. We agree with plaintiff.

As to the first element of injury and damages, Oregon recognizes that a plaintiff who suffers a physical impact or injury is entitled to claim mental anguish damages. Harris v. Kissling, 80 Or.App. 5, 8-9, 721 P.2d 838 (1986). Plaintiff was not required to present expert medical testimony to establish that he was injured by having the clamp left in his chest. It is within a jury's competence to conclude that a second surgery, complete with the physical impact necessary to complete the surgery and all the risks associated with it, constitutes an injury. Skeeters v. Skeeters, 237 Or. 204, 214, 389 P.2d 313 (1964). Plaintiff did not request damages for physical pain and suffering; thus, he is not obligated to put on expert testimony to prove them. In addition, injured plaintiffs are entitled to claim damages for mental anguish, which plaintiffs may establish through their own or other lay testimony. ³ Thus, the trial court's order for directed verdicts may not be affirmed on the ground that plaintiff would offer no expert testimony to prove injury and damages.

Regarding the inference of negligence, plaintiff argues that the surgeon, nurses, and hospital owed him a duty not to leave the serrefine clamp in his chest after surgery. Such a general statement may assert the obvious, but it does not end our analysis. " 'Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine [of res ipsa loquitur] should not be applicable unless it can be said' " that the injury was due to someone's negligence. Jeffries v. Murdock, 74 Or.App. 38, 44-45, 701 P.2d 451, rev. den. 299 Or. 584, 704 P.2d 513 (1985) (quoting Siverson v. Weber, 57 Cal.2d 834, 835, 22 Cal.Rptr. 337, 372 P.2d 97 (1962)). Plaintiff's burden here is to present enough evidence for a jury to "reasonably find * * * that it is more probable than not that the [injury] * * * would not normally occur in the absence of negligence * * *." Watzig, 292 Or. at 651, 642 P.2d 651.

Providing a rational basis from which to infer negligence does not always require expert testimony in medical malpractice cases. The Supreme Court has noted:

" 'Expert testimony is an indispensable part of plaintiff's case only when the average juror cannot be expected to understand the issues without that kind of assistance. It is not required simply because the circumstances are outside the average juror's experience if the other evidence is such as to present the issue in terms which the jury can be expected to understand.' "

McKee, 301 Or. at 350, 723 P.2d 288 (quoting Hall v. State, 290 Or. 19, 27, 619 P.2d 256 (1980) (emphasis added)). Though we have stated that "in the great majority of [medical malpractice] cases expert testimony is required," we nevertheless believe that it is within the capability of a jury to ascertain that a clamp is not normally left inside a patient unless someone was negligent. Jeffries, 74 Or.App. at 43, 701 P.2d 451; see also Piehl v. The Dalles General Hospital, 280 Or. 613, 618-19, 571 P.2d 149 (1977) (a jury could assess whether leaving a laparotomy sponge in a patient was negligent); Mayor v. Dowsett, 240 Or. 196, 215, 400 P.2d 234 (1965) (the "most obvious illustration of the use of the doctrine [of res ipsa loquitur] in medical malpractice cases is, of course, where a foreign object, such as a sponge or a needle, is left in the patient's interior at the time of surgery").

Defendants' efforts to distinguish the serrefine clamp from other applications of res ipsa loquitur where objects were left in patients after surgery are not persuasive. Neither is the argument that the instrument could have been left without negligence. The surgeon testified, at his deposition, that it was not the usual medical procedure to leave a clamp in the patient and that it is "difficult to lose a...