Fredrickson v. Maw, 7452

• Decision Date: 20 February 1951
• Docket Number: No. 7452,7452
• Citation: 119 Utah 385,227 P.2d 772
• Parties: FREDRICKSON, v. MAW et al.
• Court: Utah Supreme Court

Page 772

227 P.2d 772

119 Utah 385

FREDRICKSON, v. MAW et al.

No. 7452.

Supreme Court of Utah.

Feb. 20, 1951.

Skeen Thurman & Worsley, Earl Jay Groth, all of Salt Lake City, for appellants.

H. A. Rich, Leonard W. Elton, Salt Lake City, for respondent.

LATIMER, Justice.

This is an appeal by the defendants from a judgment entered against them in an action for damages alleged to have been sustained by plaintiff as a result of the carelessness and negligence of the defendant, Dr. Raymond B. Maw, in performing a tonsillectomy. We shall designate the parties as they appeared in the court below and proceed in the opinion as though the action was against Dr. Maw individually. The charge of negligence was that the defendant carelessly left gauze, dressings, threads, and sutures in the tonsil cavity; negligently permitted the incision to close with materials remaining therein; and negligently discharged the plaintiff as healed without discovering the presence of the foreign substances.

The principal error complained of on this appeal is that the trial judge improperly overruled defendant's motion for a nonsuit and a directed verdict for the reason that there was no evidence to establish that the defendant was negligent in the manner alleged, or at all.

In view of the nature of the evidence, before summarizing it to establish negligence or lack of negligence, we desire to discuss the principles of law dealing with the evidence necessary to establish malpractice of the alleged type.

The better-reasoned cases announce a rule of law to the effect that in those cases which depend upon knowledge of the scientific effect of medicine, the results of surgery, or whether the attending physician exercised the ordinary care, skill and knowledge required of doctors in the community which he serves, must ordinarily be established by the testimony of physicians and surgeons. There is, however, another well-recognized rule holding that when facts may be ascertained by the ordinary use of the senses of lay witnesses, it is not necessary that expert testimony be produced and relied upon.

Included within the latter rule are those cases which are similar to this one, namely, those actions involving negligence in leaving instruments, needles, sponges, bandages, gauze or foreign particles in incisions, wounds, or open cavities. So far as establishing negligence on the part of the doctor in this type of case is concerned, it would appear to be a matter of common knowledge that due care is lacking if surgical instruments, sponges, or medical supplies are not removed before an incision is closed or the wound heals; and lack of direct evidence of the failure to remove is not fatal to plaintiff's case when there is evidence from which an inference to that effect may legitimately be drawn.

The rule is stated in the case of Wharton v. Warner, 1913, 75 Wash. 470, 135 P. 235, 237, in the following language: 'It is argued on behalf of the respondent Warner (1) That whether a surgical operation was unskillfully performed is a question of science, and is to be determined by the opinion evidence of surgeons; and (2) in effect that a bad result standing alone is no evidence of unskillful surgery. From these postulates it is argued that there is no evidence to sustain the verdict. Both propositions are sound when soundly applied. The reason is that in most cases a layman can have no knowledge whether the proper medicine was administered or the proper surgical treatment given. Whether a surgical operation was unskillfully or skillfully performed is a scientific question. If, however, a surgeon should lose the instrument with which he operates in the incision which he makes in his patient, it would seem as a matter of common sense that scientific opinion could throw little light on the subject. So, in this case, where a surgeon loses a metallic spring about 12 inches in length, and about one-sixteenth of an inch in width, in the body of his patient, and fails to discover and remove it, it would seem that a jury would have abundant justification for inferring negligence without the aid of expert testimony.'

With these principles in mind, we summarize the material testimony of the witnesses, taking into consideration that plaintiff is entitled to the benefit of the evidence and inferences favorable to her as the jury rendered a verdict against the defendant.

Mrs. Fredrickson testified that prior to the 6th day of July, 1945, she was in good health, except a stiffness of one knee caused by arthritis; that on that date she went to the Intermountain Clinic, operated by a partnership of which the defendant was one partner; that the purpose of her visit was to seek relief for her arthritis affliction; that she was given a physical examination and was then directed to the defendant; that he examined her throat and recommended the removal of her tonsils as the right one was diseased; that she was informed that their removal might help relieve the arthritic condition; that she concluded to have her tonsils removed, received an appointment with the defendant, and on July 17, 1945, reported for the operation; that she was given a local anesthetic and the tonsils were removed by the defendant; that the operation consumed about an hour's time and it was necessary that the doctor use gauze sponges; that after the operation was complete she was permitted to leave the clinic and was told to return in about three weeks for a check-up.

She further testified that during this three-week period her throat was sore and she had considerable difficulty swallowing; that she returned within the period as directed but the defendant was on his vacation and so the nurse examined her throat; that she informed the nurse of her difficulty in swallowing and explained that it felt like she had a lump in her throat; that the nurse replied it was the ties on the vessels in the tonsil area which were causing the difficulty; that she was not directed to return, but due to the fact that her throat was giving her considerable difficulty, towards the latter part of August, 1945, she called on the phone and asked to talk to the defendant, but was informed he was busy; that she talked with the nurse and in this telephone conversation she informed the nurse her throat was sore; that she overheard the nurse tell the defendant that she, the nurse, had observed an ulcer in her throat and she heard the defendant reply to the nurse to have plaintiff return for further treatment; that the defendant examined her throat, told plaintiff there was a little drainage from the head and tonsil area which was causing her throat irritation, treated her sinuses and prescribed a mouth wash; that she was not instructed to return, but about every three or four weeks after that for a period of about a year and a half she went to see the defendant; that in October, 1947, she had an ulcer on the side of her tongue which was medicated and defendant had a blood sample taken for analysis for possible cancer; that during the three-year period of time her throat was sore and she was treated largely for sinus trouble, although prior to the operation she had never had any sinus disorder; that the last time she went to the clinic for treatment was on June 29, 1948.

Continuing with plaintiff's testimony, she stated that due to the fact that during this period she was not getting any relief from her pain and suffering, she consulted with twelve doctors and dentists; that among these were her family physician and her dentist; that the former prescribed penicillin treatment, the latter examined her mouth, but at that time referred her to a physician, Dr. Johnson; that he examined her mouth and prescribed sulpha and penicillin treatments; that in January, 1946, she returned to Dr. Wright, the dentist, who extracted eighteen front teeth; that the rear teeth were not extracted as they had been taken out approximately 30 years before; that Dr. Wright did not use any packs, absorbent cotton or any fabric materials in her mouth; that he made a set of dentures, but due to the condition of her mouth she was unable to use them satisfactorily; that Dr. Wright referred her back to her family physician, who treated her further with penicillin; that at this time she was bothered with an ulcer in the tonsil area; that in April 1946 and some time in 1947 she consulted another dentist and in 1947 another set of dentures was made by Dr. Wright but she was unable to use them; that in July, 1947, she visited an oral surgeon, Dr. Browning, who opened up the gums of the lower jaw and cleaned out the infection; that Dr. Browning did not use any packs, gauze or cotton in her mouth, neither did he perform any surgery in the back of her mouth or around the tonsil area; that during this time her throat was giving her considerable trouble and there were ulcers in the tonsil area and along the side of her tongue; that she was advised that the condition of her throat might be caused by cancer and she consulted two cancer specialists who advised her that her trouble was from infection and not from cancer; that she was treated by another general practitioner, Dr. Argyle, who treated her for infection of the mouth, and throat, gave her hormone and penicillin shots and recommended a mouth wash; that none of these doctors or specialists, except Dr. Browing, did any surgery or cutting in her mouth or placed gauze or sponges in her mouth; that during May, 1948, Dr. Browning and Dr. Sears examined her throat and referred her to Dr. Dolowitz, a throat specialist whom she consulted about May 10, 1948; that at this time there was an ulcer approximately the size of a dime on the left side of her throat above the tonsil area; that Dr. Dolowitz took a biopsy, prescribed some medicine and told her to return in a couple of days; that she returned for the appointment but nothing further was done by the doctor until June 24, 1948 when he took another and...