Funk v. Bonham

• Decision Date: 09 December 1932
• Docket Number: No. 26230.,26230.
• Citation: 183 N.E. 312,204 Ind. 170
• Parties: FUNK v. BONHAM.
• Court: Indiana Supreme Court

204 Ind. 170

183 N.E. 312

FUNK

v.BONHAM.

No. 26230.

Supreme Court of Indiana.

July 29, 1932.

As Corrected on Denial of Rehearing Dec. 9, 1932.

Appeal from Owen Circuit Court; Herbert Rundell, Judge.

Action by Arta Bonham against Vance A. Funk. From judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under section 1357, cl. 2, Burns' 1926, Acts 1901, p. 565, c. 247, § 10, cl. 2.

Affirmed.

Superseding 151 N. E. 22.

Townsend & Thomas, of Fort Wayne, Kessinger & Hill and Emison & Hoover, all of Vincennes, and Hickam & Hickam, of Spencer, for appellant.

Padgett & Clark, of Vincennes, and Webster V. Moffett, of Bloomfield, for appellee.

TRAVIS, J.

This is an action on contract (Staley v. Jameson [1874] 46 Ind. 159, 15 Am. Rep. 285;Goble v. Dillon [1882] 86 Ind. 327, 44 Am. Rep. 308;Lane v. Boicourt [1891] 128 Ind. 420, 27 N. E. 1111, 25 Am. St. Rep. 442) by appellee against the appellant, wherein appellee seeks to recover damages from appellant on account of injuries sustained by the appellee while a patient under the care and treatment of the appellant. The complaint is presented by appellee's complaint in one paragraph, the sufficiency of which was in no manner questioned by appellant. Appellant pleaded the general issue. The cause was submitted and tried to a jury, which returned a verdict for appellee for $9,000. The appeal is from the judgment upon the verdict, by which appellant pleads as reversible error the action of the trial court overruling his motion for a new trial. The errors presented by the motion for a new trial, and presented upon appeal, are: That the verdict is not sustained by sufficient evidence; the verdict is contrary to law; the court erred in refusing to give to the jury instructions Nos. 17, 18, 19, 21, 22, 23, 24, 25, 26, and 27 tendered by the appellant; the court erred in giving to the jury of its own motion, instructions Nos. 1, 9, 10, and 13, and that the damages assessed by the jury are excessive.

The substance of appellee's complaint is: That she was a married woman, aged 39 years at the time of the surgical operation upon her by appellant. That for a long time prior thereto appellant was a duly licensed practicing physician and surgeon of the state of Indiana, and practiced in the city of Vincennes, and held himself out as a specialist in the practice of surgery. That a few days prior to the day of the operation appellee was afflicted and suffered from a tumor or growth of some kind in her abdominal cavity, and that she employed appellant to treat her for the ailment alleged, and that he, for a valuable consideration, undertook and agreed to treat and care for her and to relieve her of her affliction. Appellant caused her to be taken to the Good Samaritan Hospitalin the city of Vincennes, and advised her that a surgical operation would be necessary to relieve her of her afflictions, to which appellee consented that appellant perform the surgical operation advised by him. On the day of the operation, appellant caused her to be put under an anæsthetic, and then performed a surgical operation upon her by cutting an opening into her abdominal walls in the middle line below the navel about four inches in length and removed from her abdominal cavity a growth or tumor. In the performance of the surgical operation, appellant used an absorbent sponge about four inches wide and eight inches long and about one-fourth of an inch thick with a string six or eight inches long attached thereto; and that, after having removed the tumor or growth, appellant carelessly and negligently closed the opening or wound, and stitched the same together tightly, leaving the sponge in her abdominal cavity.

That she, appellee, remained in such hospital and under the care of the appellant for about 4 weeks, during all of which time he carelessly and negligently suffered and permitted the sponge to remain sewed up in her abdominal cavity. Appellant then discharged plaintiff and she returned to her home in Bicknell, Ind. That because of the presence of the sponge in her abdominal cavity, so left therein by appellant, the same set up an irritation therein, caused pus to gather and form in her abdominal cavity, which pus gathered in such large quantities that it permeated her entire system. That finally the pus broke open the place where appellant had lanced and cut open her abdomen, and the sponge began to work out through this opening, and finally an opening was required to be made large enough that the sponge could be removed therefrom. That she was made sick and caused to suffer great and intense pains because of the presence of this sponge, and her entire system became poisoned and weakened on account thereof; and that she would suffer pain and weakness, caused thereby, the remainder of her life, all to her damage in the sum of $10,000. That the leaving of the sponge in her abdomen and the injuries resulting to her on account thereof was the fault wholly of appellant as aforesaid, without any fault or carelessness on her part.

It is unnecessary to narrate any of the evidence to support the complaint, for the reason that no objection is presented to any of the evidence in support of the allegations of ultimate facts in the complaint upon which the verdict must rest, but appellant makes the proposition that appellee, as plaintiff, cannot prove negligence in the leaving of the sponge in her abdomen by any evidence, except by expert testimony.

Appellant presents the points, which when made into a composite point are to the effect that the evidence presented to support the allegations of negligence was not given by experts, such as physicians or surgeons, but by lay witnesses; that evidence by non-expert witnesses is incompetent to prove the alleged negligence of the surgeon, from which it must follow that testimony by expert witnesses is necessary for the jury to consider, and by which the jury will determine the question whether or not care and skill was exercised by the operating surgeon in the operation, in which operation the surgeon placed a so-called lap sponge in appellee's abdomen and failed to remove it before the operation was completed, which lack of care and skill constitutes negligence. More specifically, the point is made by appellant that the jury may not legally determine or decide how surgery shall be performed, but that the jury must be guided by expert testimony on the subject. Appellant, by testimony by experts, showed the method of deep abdominal surgery, and appellant, as the operating surgeon, followed the recognized methods of operation; and that the sponge was overlooked and left in the patient's abdomen by “accident”; that such an accident would not constitute negligence, from which it must follow that appellee could not recover damages.

Ordinarily, and almost universally, the issue of negligence is to be decided by the jury, when the case is tried to a jury, upon the competent evidence. Appellant makes no objection to the testimony, which was introduced by the plaintiff in this case, to sustain the allegations of negligence, but, from the points already mentioned, bases the alleged error of insufficient evidence to sustain the verdict upon the lack of testimony by expert witnesses upon the question of negligence, which, it must be assumed, from the points made in the brief, was the duty of the plaintiff to introduce. It was held by a New York court that expert testimony to the effect that proper methods were used in the surgical operation destroyed any inference of negligence, because a gauze pack-off sponge was left in the abdominal cavity.

Blackburn v. Baker (1929) 227 App. Div. 588, 237 N. Y. S. 611. This is a more recent case than those cited to sustain the point, but it is of the same tenor. We do not subscribe to the above statement of the law, for the reason that it is for the jury to determine from the evidence whether the omission of certain treatment like the failure to remove a lap sponge used in the operation before the incision was closed, was or was not negligence. Carpenter v. Blake (N. Y. 1871) 60 Barb. 488;Walker Hospital v. Pulley (1920) 74 Ind. App. 659, 127 N. E. 559, 128 N. E. 933.

The testimony of experts is used most frequently by the defendants in malpractice cases to prove no lack of duty or skill. This is illustrated by the principle of law stated in the cited case of Blackburn v. Baker, supra, which would sustain the verdict upon the evidence in this case, to the effect that the mere presence of the sponge in appellee's abdomen, after the operation under consideration, standing by itself, suggests that proper surgical care had not been used; and that, under this state of facts shown by such evidence, the appellant here is required, to successfully meet the appellee's evidence to sustain the complaint, to offer proof in explanation of his action. We believe that, in the case at bar, the necessity for expert testimony was a matter of defense, and that the rule of res ipsa loquitur applies, which put upon the appellant the burden of proving to the satisfaction of the jury, in order to present a complete defense, that he was not negligent in leaving the sponge in appellee's abdomen.

In this case appellant, surgeon, presented the testimony of many expert witnesses who were physicians and surgeons, not one of whom testified that it was necessary or necesessarily beneficial, or useful, to leave the sponge in the abdomen after the completion of the surgery necessary. The sponge in question here had a string or tape attached to it, which, according to the expert testimony given by appellant and by the appellee, was to be used to attach forceps, which tape and forceps were to hang outside of the body during the entire use of this sponge in the abdominal cavity for the very purpose of preventing a less of the sponge and to prevent a failure to remove it after its use had been fully performed, and before the closing of the...