Harrison v. Wilkerson
| Decision Date | 17 February 1966 |
| Citation | 56 Tenn.App. 188,405 S.W.2d 649 |
| Parties | W. Blair HARRISON, Plaintiff in Error, v. George WILKERSON and Vicie Wilkerson, Defendants in Error. |
| Court | Tennessee Court of Appeals |
Poore, Cox, Baker & McAuley, Knoxville, and Ben Simpson, Loudon, Robert A. Finley, Knoxville, of counsel, for plaintiff in error.
William E. Cooper and Walter Gilbertson & Claiborne, Knoxville, for defendants in error.
Mrs. Vicie Wilkerson brought this action against Dr. Blair Harrison to recover for illness and damages growing out of the failure to remove a sponge within the incision following a Caesarean delivery performed by Dr. Harrison. Her husband brought a companion suit to recover for loss of services and medical expenses.
The two suits were tried together and resulted in a verdict for $25,000.00 in favor of Mrs. Wilkerson and $5,000.00 in favor of her husband. Dr. Harrison has appealed from judgments based upon the verdicts, insisting the Court erred in charging the jury in effect that defendant was guilty of negligence as a matter of law in not removing the sponge. It is also insisted the jury was guilty of misconduct in discussing whether defendant was protected by insurance and that the verdicts are excessive.
Defendant concedes that under the 'Captain of the Ship' doctrine, Meadows v. Patterson, 21 Tenn.App. 283, 109 S.W.2d 417; Rural Educational Ass'n v. Bush, 42 Tenn.App. 34, 298 S.W.2d 761; French v. Fischer, 50 Tenn.App. 587, 362 S.W.2d 926, a surgeon in normal circumstances is held accountable under respondeat superior for the negligence of assistants and nurses assisting in a surgical operation. He admits that in this case the sponge was not removed due to a mistake of the nurses in counting sponges. He insists, however, that exceptional circumstances may make the rule inapplicable and that in this case the necessity of attending to the emergency needs of the baby in an attempt to save its life might have been held by the jury to excuse him from liability. This insistence requires a statement of the proof in some detail.
Dr. Harrison knew that Mrs. Wilkerson had undergone a previous Caesarean delivery. In January, 1963, she came to him for care during another pregnancy. On July 9, 1963, she began to have premature labor pains and entered the hospital on defendant's advice. Because she had already had one Caesarian delivery within the recent past Dr. Harrison was apprehensive that she might have a rupture of the uterus unless the baby could be promptly removed. As a result preparations for the operation were made as quickly as possible but there is no insistence that proper assistance or preparations were lacking.
The operation was performed by defendant, assisted by Dr. Sam Harrison, a scrub nurse and a circulating nurse. The function of a scrub nurse is to operate within the sterile field, to hand the operating surgeon such instruments and supplies, including sponges, as he may call for. The circulating nurse is not required to have her hands and clothing sterilized. Her function is to perform such duties outside the sterile field as may be delegated by the operating surgeon.
After the baby had been delivered and Dr. Sam Harrison had assisted in stopping the flow of blood but before the incision had been closed the baby which had been carried into an adjoining room began to have difficulty. The circulating nurse and Dr. Sam Harrison then left the operating room to attend to the baby. Dr. Harrison testified that his principal function of helping control bleeding was over and he 'felt that it was safe for (him) to go and try to do something for the baby'. Both the circulating nurse and Dr. Harrison later returned to the operating room. Dr. Harrison however, took no further part in the operation and there is no proof that defendant requested any further assistance from him. After returning and before the incision was closed, the circulating nurse performed the customary and required duty of assisting the scrub nurse in counting sponges as a safeguard against leaving a sponge within the incision. In addition to the small sponges there were six large sponges, called lap sponges, in a prepared pack. All of the lap sponges were used during the operation. Due to a mistake of the two nurses in counting, one of these was left within the incision. There is proof that a board on which to hang sponges in the operating room enabled the doctor and nurses to further check the number of sponges removed.
The Court charged the jury that it was only to find whether the sponge was left within the incision and, if it should so find, the defendant would be guilty of negligence and 'liable in this case.' Since defendant admitted or did not deny in his special plea that the sponge, through a mistake of nurses, was not removed the charge of the court was tantamount to a peremptory instruction to return a verdict in some amount for each of the plaintiffs.
None of the cases cited goes so far as to hold that the surgeon may not be excused for the act of himself or of an assistant when confronted with an emergency involving human life.
In Meadows v. Patterson, supra, the patient in some unexplained manner suffered an injury to his eye while unconscious. The principal factual question was whether the injury occurred during the time the patient was in the operating room or thereafter. If the injury occurred in the operating room it was held the surgeon would be liable for any negligence of the assisting nurses. There was no distraction of the doctor's attention or emergency involved.
In Rural Educational Association v. Bush, supra, the suit was against the hospital for leaving a sponge in the patient following an operation performed by a physician on its staff. A verdict against the hospital was sustained on a jury finding that the nurse who was employed by the hospital was negligent in counting sponges. The physician was not a party to the suit and no question of emergency was involved.
In the course of the opinion, the Court s...
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Duran v. Hyundai Motor America, Inc.
...and amounts to a palpable injustice, Johnson v. Woman's Hosp., 527 S.W.2d 133, 142-43 (Tenn.Ct.App.1975); Harrison v. Wilkerson, 56 Tenn.App. 188, 196, 405 S.W.2d 649, 652-53 (1966).37 When asked to determine whether a verdict should be set aside based on the amount of the damage award alon......
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Seavers v Oak Ridge Methodist Med. Ctr.
...the patient's eye is cut during the performance of an appendectomy. See Nichopoulos, 577 S.W.2d at 203 (citing Harrison v. Wilkerson, 56 Tenn. App. 188, 405 S.W.2d 649 (1966); Meadows v. Patterson, 21 Tenn. App. 283, 109 S.W.2d 417 (1937)). Jurors in those cases are permitted to infer negli......
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Parker v. Vanderbilt University
...to the doctrine in several cases, the Tennessee courts have not attempted to formulate a definition. See Harrison v. Wilkerson, 56 Tenn.App. 188, 405 S.W.2d 649 (1966); French v. Fischer, 50 Tenn.App. 587, 362 S.W.2d 926 (1962). In two unreported cases, the Western Section of the Court of A......
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Martin v. Perth Amboy General Hospital
...no question of emergency or other extenuating circumstance was involved in any of the cases cited. Cf. Harrison v. Wilkerson, 56 Tenn.App. 188, 405 S.W.2d 649, 651 (Tenn.Ct.App.1966). Other jurisdictions have held that it is for the surgeon to acquit himself of negligence when it is shown t......