Frost v. Des Moines Still College of Osteopathy and Surgery

Decision Date13 November 1956
Docket NumberNo. 49040,49040
Citation79 N.W.2d 306,248 Iowa 294
PartiesCleo V. FROST, Plaintiff-Appellee, v. DES MOINES STILL COLLEGE OF OSTEOPATHY AND SURGERY, Defendant-Appellant, and Dr. Robert O. Fagen, Defendant-Appellee.
CourtIowa Supreme Court

Alex M. Miller, Des Moines, for defendant-appellant and defendant-appellee.

Duffield & Pinegar, Des Moines, for plaintiff-appellee.

LARSON, Justice.

Plaintiff in her action at law for damages against the defendants Des Moines Still College of Osteopathy and Surgery and Dr. Robert O. Fagen relied upon the doctrine of res ipsa loquitur. She alleged that after she was anesthetized for the purpose of an operation on her back and while unconscious and under the exclusive control of the defendants, and when the defendants and each of them and their agents had exclusive control over all the instrumentalities involved, plaintiff was negligently burned on and about her abdomen. Each defendant denied liability and counterclaimed for unpaid hospital and doctor bills. Plaintiff confessed judgment on defendants' counterclaims and the jury returned a verdict in favor of Dr. Robert O. Fagen and against the defendant Des Moines Still College of Osteopathy and Surgery, later herein referred to as 'the hospital'. From a judgment of $6,500 less the confessed hospital counterclaim of $478, or $6,022, in favor of plaintiff, the defendant hospital appeals.

The record discloses the following facts largely undisputed. Des Moines Still College of Osteopathy and Surgery is an Iowa corporation not for pecuniary profit, and in connection with a college, a hospital and clinic is maintained in Des Moines, Iowa. In addition to the permissive use of the hospital facilities by various doctors and surgeons, these facilities are used by the hospital employees. This personnel falls into three categories--professional, semiprofessional, and nonprofessional including students and interns.

Plaintiff suffered a back injury as a result of an automobile accident on January 20, 1953, and took treatments therefor at defendant's clinic during 1953. Dr. Fagen examined her in November, 1953, and advised a back operation. On January 4, 1954, she entered defendant hospital for that purpose. On January 8, 1954, Dr. Fagen performed the operation which began at 9:30 A.M. Present during the operation were Dr. Fagen, the surgeon, Dr. Carl Nagy, the anesthetist, Richard Mayer, D.O., the surgical resident employed by the hospital and assigned by the hospital to assist Dr. Fagen in the operating room, and Ruth Johnson, the hospital's surgical nurse assigned to assit in the operation. At the time plaintiff was anesthetized two 'fellows' who brought her to the operating room, and a student named David Kronish, were still in the room. Whether or not others were there during the operation does not appear, and Dr. Fagen did not recall. Plaintiff was placed on the operating table face down, anesthetized, and as Dr. Fagen retired to the scrub room to scrub for the operation, plaintiff was finally prepped and draped for surgery. Prepping refers to the preparation of the skin in the surgical area including shaving, cleansing, and things of that nature. It usually starts a day or so before the operation and is finally completed just before the surgeon operates. Although Dr. Fagen had the right to determine how plaintiff would be prepped, he gave no special instructions and did not know what solutions were used in the final preparation. Dr. Fagen observed nothing objectionable about the prepping and proceeded with the operation, which took four hours. After the operation was completed, a dressing was applied to the surgical area and hospital employees returned her to her room. Dr. Fagen did not see her again until the following morning.

When plaintiff regained consciousness in her hospital room about 7 P.M., the student David Kronish and her husband were present. She immediately complained, 'My stomach hurts just terrible', and David Kronish replied, 'Well, no wonder, your stomach hurts, we had quite an explosion, you were the calmest one of the four of us.' Later Kronish told her to forget the explosion, that it was a 'joke'.

When Dr. Fagen saw plaintiff the next morning he expressed surprise as he observed the burns on her abdomen. He testified there was no explosion during the course of the operation or in his presence. The hospital and Dr. Fagen made no charge for treating this injury which turned out to be first, second and third degree burns. This treatment ceased May 7, 1954. Substantial areas were involved and ugly scars remain, causing plaintiff both physical and mental distress.

Plaintiff tried to find out what happened, but nobody ever told her. No evidence was introduced herein to enlighten us as to what happened. Doctors, according to the nurses' records introduced into evidence, expressed the opinion that 'Blisters on abdomen apparently from either' were discovered 1-9-54 at 8:05 A.M. (Emphasis supplied.)

Complaint is made of the trial court's adverse rulings (1) on appellant's motion for directed verdict on the ground that the evidence showed that it could not and did not, as a corporation, exercise control or direction over Dr. Fagen, the surgeon, or Dr. Mayer in the treatment of plaintiff, or exercise any control over the instrumentalities used therein; (2) on appellant's motion to withdraw from jury consideration the allegations of negligence in plaintiff's petition for the reason that it was not shown to have exclusive control over the instrumentalities alleged to have caused the injury, and for the further reason that plaintiff did not identify the instrumentalities causing her injury, thereby making the doctrine of res ipsa loquitur inapplicable; and (3) on its motion for judgment notwithstanding the verdict for the same reasons. Complaint is also made that its exception to the court instructions as improper were also wrongfully overruled. Because the principal issues are involved in each complaint, they will be discussed as one.

We believe the trial court properly submitted this case to the jury on the theory of res ipsa loquitur. We believe it properly determined by its ruling that the defendant corporation must answer for the negligence of its servants, agents and employees, and that the defendant corporation had 'complete control' over its officers and employees excepting perhaps when they were personally engaged in the professional practice of osteopathy and surgery. We agree that the burden was upon the defendant corporation to produce proof that its officers or employees were not acting for it at the time in question, and that the trial court properly determined that the question as to whether, when plaintiff's injury was incurred, the defendant corporation or the surgeon, or either of them, was in exclusive control, became a fact question for the jury.

The crux of the case resolves itself around two main issues upon which this court has not previously made pronouncement and upon which there is little authority elsewhere. The first issue, stated simply, is whether or not in cases of this nature and circumstances it is necessary under the doctrine of res ipsa loquitur for plaintiff to prove what instrumentality or instrumentalities caused her injury; and the second, what liability a corporated hospital has for the acts or omissions of its officers, employees or attaches when a patient under anesthesia is injured by the lack of due care while in the hospital for treatment or surgery. Both issues are not without difficulty of solution and were well presented and argued by able counsel.

I. The doctrine of res ipsa loquitur has been the subject of many articles, textbook pronouncements, and court decisions. 35 Iowa L.Rev. 393; Prosser on Torts, page 295; 9 Wigmore, Evidence, 3d ed., § 2509, page 382; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425, and cases cited therein; Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258; Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285; Vonault v. O'Rourke, 97 Mont. 92, 33 P.2d 535; Maki v. Murray Hosp., 91 Mont. 251, 7 P.2d 228. It is a simple understandable rule of circumstantial evidence with a sound background of common sense and human experience, and difficulty comes only when we attempt to transform it into a rigid legal formula, which arbitrarily precludes its application in many cases where it is most important that it be applied. This is such a case. We should, in applying the rule, not forget the particular force and justice of the rule. It is regarded as a presumption throwing upon the party or parties charged with the duty of producing evidence of the circumstances, to come forth with the evidence, whether culpable or innocent, which is particularly accessible to him or them, but inaccessible to the injured person. 9 Wigmore, Evidence, 3d Ed., § 2509, page 382, supra; Ybarra v. Spangard, supra; Whetstine v. Moravec, supra; Ross v. Double Shoals Cotton Mills, 140 N.C. 115, 52 S.E. 121, 1 L.R.A., N.S., 298; Maki v. Murray Hosp., supra.

In the recent pronouncement of the California Supreme Court in Ybarra v. Spangard, supra [25 Cal.2d 486, 154 P.2d 689], the court said:

'* * * it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of some one's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.'

Clearly the same reasoning must apply to the corporate hospital and its servants. It must be...

To continue reading

Request your trial
41 cases
  • Barlow v. Iblings
    • United States
    • United States State Supreme Court of Iowa
    • February 6, 1968
    ...What is suggested is the existence of a public policy which has the force of constitutional recognition. In Frost v. Des Moines Still College, 248 Iowa 294, 79 N.W.2d 306, we put the matter in stronger language: 'Justice Rutledge, in President and Directors of Georgetown College v. Hughes, ......
  • Briner v. Hyslop
    • United States
    • United States State Supreme Court of Iowa
    • August 17, 1983
    ...committed within the scope of their employment even though the employer is without fault. Frost v. Des Moines Still College of Osteopathy and Surgery, 248 Iowa 294, 304-06, 79 N.W.2d 306, 314 (1957). It is less certain, however, under what circumstances an employer is liable for punitive da......
  • Jackson v. Oklahoma Memorial Hosp.
    • United States
    • Supreme Court of Oklahoma
    • October 17, 1995
    ...Pacific Ben. Ass'n Hospitals, 62 Wash.2d 351, 382 P.2d 518 (1963) (paralyzed arm from hysterectomy); Frost v. Des Moines Still College of Osteo. & Surg., 248 Iowa 294, 79 N.W.2d 306 (1957) (burn on abdomen from back surgery).34 Buck's Sporting Goods v. First Nat. Bank, Okl., 868 P.2d 693, 6......
  • Mayor v. Dowsett
    • United States
    • Supreme Court of Oregon
    • March 17, 1965
    ...Loquitur in California, 37 Cal.L.Rev. 183, 184-185.2 Vonault v. O'Rourke, 97 Mont. 92, 33 P.2d 535; Frost v. Des Moines Still College of Osteopathy and Surgery, 248 Iowa 294, 79 N.W.2d 306; Sanders v. Smith, 200 Miss. 551, 27 So.2d 889; Dawson v. Allen, 191 Ill.App. 399; Meadows v. Patterso......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT