Funk v. Bonham, 12299.

• Decision Date: 10 March 1926
• Docket Number: No. 12299.,12299.
• Citation: 151 N.E. 22
• Parties: FUNK v. BONHAM.
• Court: Indiana Appellate Court

151 N.E. 22

FUNK

v.BONHAM.

No. 12299.^*

Appellate Court of Indiana, in Banc.

March 10, 1926.

Appeal from Owen Circuit Court.

Action by Arta Bonham against Vance A. Funk. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

Kessinger & Hill and Emison & Hoover, all of Vincennes, and Hickam & Hickam, of Spencer, for appellant.

Arnold J. Padgett and Arthur A. Clark, both of Vincennes, and Webster V. Moffett, of Bloomfield, for appellee.

ENLOE, P. J.

This was an action by the appellee and against the appellant, wherein appellee sought to recover damages on account of alleged injuries sustained and pain and suffering endured, all because of the alleged negligence of the appellant.

It appears from the record that in November, 1920, the appellee was a married woman, of the age of 39 years, and resided in Bicknell, Ind.; that at that time, and for some months prior thereto, she had not been in good health, and had been under the treatment of a local physician, Dr. Staley; that the appellant was called to her home to examine her, and that, after an examination, he advised that she go to a hospital for an operation; that she was taken to the Good Samaritan Hospital at Vincennes, and there operated upon, on November 24, 1920, by the appellant. When the body cavity was opened it was discovered that there was a chronic infection of the appendix with adhesions, and the appendix was removed; it was also discovered that the appellee was afflicted with a cystic ovary of the size of a hen's egg, and also was suffering from a large fibroid tumor of the uterus. The condition of the internal organs was such that it was deemed necessary to remove the entire uterus, the cystic ovary, and the fallopian tubes, and this was done. The operation was what is known to surgeons as a “deep abdominal” operation, and in its performance it was necessary to “wall off” the intestines by the use of “surgical sponges,” these sponges being made of gauze, folded to about 4 thicknesses of cloth, and about 8 inches long and 4 inches wide, and stitched around the edges.

The complaint herein was in one paragraph, and the material part thereof, so far as this appeal is concerned, was as follows:

“That in the performance of said surgical operation the defendant used an absorbent sponge about 8 inches wide by 4 inches long, and about one-fourth of an inch thick, with a string 6 or 8 inches long attached thereto; that after having removed said tumor or growth the defendant carelessly and negligently closed the opening or wound and stitched the same together tightly, leaving said sponge in her abdominal cavity.”

The complaint then alleged subsequent sickness and suffering consequent upon said alleged negligent act, and asks for damages in the sum of $10,000.

This complaint was met by an answer in general denial, and the issue thus formed was submitted to a jury for trial, and resulted in a verdict in favor of appellee in the sum of $9,000, upon which judgment was rendered. The overruling of appellant's motion for a new trial is the only error assigned. The reasons for a new trial presented by said motion and urged upon this appeal are that said verdict is not sustained by sufficient evidence, that it is contrary to law, that the damages assessed are excessive, that the court erred in giving each of certain designated instructions and that the court erred in refusing to give each of certain designated requested instructions. In considering these matters we must keep in mind that in the complaint herein there is no charge of lack of knowledge, or of lack of skill, the sole charges being that appellant negligently left said sponge in the abdominal cavity of the appellee and closed said cavity, and that he negligently suffered and permitted said sponge to remain in the abdominal cavity of appellee.

The record discloses, without conflict, that the operation in question was performed at the Good Samaritan Hospital at Vincennes; that said hospital is a public hospital owned and controlled by Knox county, Ind.; that, in the performance of said operation the appellant was assisted by Dr. Frigge, who administered the anesthetic; that he was also assisted by three nurses, employees of said hospital, in performing said operation; each of said nurses having a particular work to do in connection with the performing of said operation.

The record discloses that the said operation was performed on November 24, 1920. About the 14th day thereafter the stitches were removed, and a slight infection, which the doctor pronounced a “stitch infection,” was discovered. About a week later a drainage tube was placed at the point of this infection to drain the same. Appellee returned to her home on December 16th, and again went under the care of Dr. Staley, who attended her and looked after the dressing of her wound. On December 31, 1920, the wound had opened to some extent, and a piece of cloth was protruding therefrom, which the doctor, by the use of forceps, removed. Appellee continued sick for some time, suffered great pain, and claims that her health is permanently impaired.

Taking the evidence offered in behalf of the appellee, with all legitimate inferences to be drawn therefrom, we shall consider it as an established fact in the case that the surgical sponge in question was left in and sewed up in the abdomen of appellee by the appellant at the time he performed said operation. But the question which we have to consider remains: Does the testimony show that he was negligent in said matter?

Counsel for appellee in the brief filed herein say:

“The real controversy in this case is based upon a single proposition, and that is this: Is appellant liable for damages for leaving the sponge in appellee's abdominal cavity, or is he excused because he intrusted the counting of the sponges to the nurse who assisted him in performing the operation?”

[1] It has been expressly held, in a case similar to the one now under consideration, that the “operation” included not only the opening of the body cavity and the removing of diseased organs therefrom, but also the use and the removal of the sponges used in such operation, before the closing of the incision. Akridge v. Noble, 41 S. E. 78, 114 Ga. 949. And the authorities all agree that the duty which the surgeon owes to the plaintiff in performing the operation is that of exercising reasonable care. Longfellow v. Vernon, 105 N. E. 178, 57 Ind. App. 611, and authorities there cited.

Counsel for appellee also say in their brief filed herein:

“No issue was presented by the pleadings, and no evidence was offered or introduced as to the learning, skill, or professional ability of the surgeon. *** There was no issue or claim that appellant was negligent in the operation, or any mistake or error of judgment on the part of the appellant in the operation. The negligence claimed was the leaving of the sponge in the abdomen after the operation.”

It will be thus seen that counsel seek to eliminate the matter of the removal of said sponges from the work of performing the operation, and would consider it as a separate matter, which, under the authorities, they cannot do. In Akridge v. Noble, supra, the same contention was made that is now made by counsel for appellee herein-that the removal of the sponge was not a part of the operation, and that the failure to remove it was due to the surgeon's negligence. In passing upon this matter the court said:

“It seems to us that the operation begins when the opening is made into the body, and ends when this opening has been closed in a proper way, after all appliances necessary to the successful operation have been removed from the body. From the time the surgeon opens with his knife the body of his patient until he closes the wound thus made in a proper way, the law imposes upon him the duty of exercising not only due care, but due skill as well. During the entire time he must not only know what to do, but he must do it in a careful and skillful manner.”

The evidence in this case discloses, without conflict, that, in performing the operation in question, appellant was assisted by certain graduate nurses, not the servants of appellant, but regular employees of the hospital where said operation was performed; that the sponges used in surgical operations were prepared beforehand, sterilized, packed six in a box, and put away until needed; that they were prepared and kept at the hospital; that when an operation is to be performed the sponges are brought in, the packages opened, the sponges again counted and placed on the “sterile table” at the side of the operating table; that during the operation, as the surgeon calls for them, the sterile nurse takes them, one at a time, moistens them, and hands them to the surgeon; that when the sponges are removed by the surgeon they are placed in a basin at the foot of the operating table; that before the incision is closed the surgeon asks the assistant nurses about the sponges; and that the unsterile nurse then counts the sponges in the basin and reports to the sterile nurse the number thereof, who then checks the number so announced against the number of sponges used, and announces to the surgeon as to whether or not the count is correct-that is, as to whether or not all sponges used have been removed and accounted for. The above was the method used in performing the said operation upon the appellee herein, and the record shows, by uncontradicted testimony, that the appellant, before he closed the incision which he had made upon the body of appellee, asked the said nurses if the sponges were all out, and the nurses informed him that they were.

[2] It has been expressly held that a surgeon who performs an operation at...