Hestbeck v. Hennepin County

• Decision Date: 26 October 1973
• Docket Number: 43743,Nos. 43729,s. 43729
• Citation: 212 N.W.2d 361,297 Minn. 419
• Parties: Raymond HESTBECK, Respondent, v. HENNEPIN COUNTY, Appellant-Respondent, Thomas F. Coulon, Respondent-Appellant.
• Court: Minnesota Supreme Court

Page 361

212 N.W.2d 361

297 Minn. 419

Raymond HESTBECK, Respondent, v. HENNEPIN COUNTY, Appellant-Respondent Thomas F. Coulon, Respondent-Appellant.

Nos. 43729, 43743.

Supreme Court of Minnesota.

Oct. 26, 1973.

Syllabus by the Court

1. Expert medical testimony is not essential to establish a prima facie case of medical malpractice when the case involves medical or surgical errors upon which a layman is competent to pass a judgment that, based on common experience, a medical error such as losing a sponge in a patient's interior does not happen without someone's negligence.

2. The doctrine of res ipsa loquitur, which permits an inference of negligence from circumstantial evidence, was properly given as part of the court's instructions to the jury in this case where a sponge was lost within the patient's surgical wound during the course of an operation.

3. The evidence sustains the amount of damages awarded to plaintiff and sustains defendant county's liability therefor.

4. Under the facts peculiar to this case, where plaintiff was confined in defendant county's hospital under constant medical care and treatment by defendant's employees for 34 days following the alleged negligence of defendant, plaintiff was incapacitated within the meaning of Minn.St. 466.05 and notice of claim served 14 days after his discharge from defendant's hospital, although served more than 30 days after injury, was timely.

Mahoney, Dougherty, Angell & Mahoney, and John F. Angell, Minneapolis, for Hennepin County.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, O. C. Adamson II and Mary Jeanne Coyne, Minneapolis, for Coulon.

Feinberg, Mirviss, Meyers, Schumacher & Malmon, and James J. Schumacher, Minneapolis, for respondent.

Heard before KNUTSON, C.J., and ROGOSHESKE, PETERSON, and MacLAUGHLIN, JJ. Reconsidered en banc.

ROGOSHESKE, Justice.

This is a medical malpractice action arising out of the surgical removal of plaintiff's gallbaladder. The jury by special verdict awarded plaintiff $12,500 damages, assessing negligence under our comparative-negligence statute 65 percent against defendant Thomas F. Coulon, the surgeon, and 35 percent against other employees of Hennepin County General Hospital, an agency of defendant county. Since we hold, contrary to defendants' respective claims of error, that it was not improper to instruct the jury that negligence was inferable under the doctrine of res ipsa loquitur; that evidence to sustain the amount of the award and the jury's finding of negligence against defendant county is sufficient; and that plaintiff gave timely notice of claim to the county within the contemplation of Minn.St. 466.05, our notice-of-tort-claim statute, we affirm the judgment and the trial court's post-trial order denying motions for a new trial.

The basic facts are not in dispute. Plaintiff, a 47-year-old air freight handler suffering from symptoms diagnosed as a gallbladder attack but otherwise in good health, was admitted to Hennepin County General Hospital on September 10, 1969. Examination revealed a diseased gallbladder, and plaintiff voluntarily submitted to surgery for its removal, the surgery being performed September 24, 1969, while plaintiff was under general anesthesia.

The operation was performed by two doctors, employees of defendant county's hospital who were in postgraduate surgical training. Dr. Shorey, a junior resident surgeon, began the surgery. He was assisted by Dr. Wigner, an intern, and surgical nurses, with defendant Dr. Coulon, chief resident surgeon, in supervisory charge. When the gallbladder was exposed to visual examination after the incision had been made and surgical drains, clamps, and sponges had been inserted in the wound, Dr. Coulon determined that because of the 'inflammation around it' its removal was beyond Dr. Shorey's experience. Dr. Coulon then intervened. He testified that 'we changed sides of the table and I took it out.' The operation, which took 4 hours and 45 minutes, was one which the jury could find was not unusually difficult, complicated, or prolonged and, except for the unexpected shift of responsibility in performing the surgical removal and the subsequent loss of a sponge, involved no significant complications.

After removing the gallbladder and surgical drains, clamps, and what he thought were all surgical sponges, Dr. Coulon directed Dr. Shorey to close the incision and left the operating room before the sponge count was taken. While he was still in an adjoining room dictating his surgical report, Dr. Coulon was informed that the sponge count was incorrect and that one sponge, 4 by 8 inches in its pristine state and containing an 'opaque' marker intended to show up on X-ray, was missing. He immediately returned to the operating room and for an additional 1 hour and 45 minutes unsuccessfully probed visually and manually within plaintiff's abdominal cavity to locate the missing sponge. During this period a hospital technician, using a portable X-ray machine, took an X-ray picture of plaintiff's abdominal area, including the area where the missing sponge was ultimately found. This X-ray did not reveal the existence of the sponge. Dr. Coulon, following his extensive search, was convinced that no sponge remained in plaintiff and that the nurse's sponge count was incorrect. In any event, if he had any lingering doubts, he concluded it was no longer medically wise to keep plaintiff exposed to the danger of continued anesthesia, and therefore he closed the abdominal cavity and plaintiff was removed to the recovery room.

Upon someone's order (the identity of whom is asserted by defendants as unknown), another X-ray was taken in the recovery room and this film did reveal the existence and location of the missing sponge. Dr. Coulon, however, was not informed of this until 2 days later. At that time, after additional X-rays had been taken, he proceeded, with plaintiff's permission, to reoperate. In this second operation, Dr. Coulon was readily able to retrieve the lost sponge from plaintiff's abdomen after reopening the middle half of the incision.

Plaintiff remained hospitalized until October 29 under daily care and treatment for infection of the surgical wound which manifested itself following the second operation. On the basis of expert medical testimony, the jury might well have found that the infection was causally related to the second operation. As efforts to caustically close the wound were unsuccessful, plaintiff was required to return to the hospital periodically after his discharge for treatment of the still-open wound. In January 1970, he sought medical treatment from a surgeon in private practice for his still-open wound. He eventually was operated on for the third time to correct a hernia and the defect in the wound caused by the infection. Prior to this last operation, he consulted an attorney on October 30, the day following his discharge from defendants' hospital. A notice of tort claim on his behalf was served upon defendant Hennepin County on November 12, 48 days after the first operation and 14 days after his discharge from the hospital.

1--2. Defendant surgeon, joined by defendant county, vigorously contends that where in the course of a surgical operation a sponge count indicates a missing sponge and the surgeon, following skillful and accepted medical procedures in an extensive search for the missing sponge, determines that the patient's welfare requires a termination of the operation even though the sponge has not been found, a lay jury should not be permitted to find malpractice absent competent expert medical testimony that the surgeon deviated from the standard of professional skill and care of other surgeons. They contend that it was error to submit the case to the jury under the doctrine of res ipsa loquitur. We do not agree. Rather, we believe that not only was the circumstantial evidence sufficient to permit the jury to draw an inference of professional negligence but that this is a classic case where, upon plaintiff's timely request, the court was required to instruct on res ipsa to aid the jury in performing its factfinding function.

We do not by these conclusions indicate a deviation from the rule that a surgeon is not an insurer of good results. ¹ Moreover, the complexities and uncertainties in the practice of medicine justify a continued adherence to the rule that the degree of skill and the standard of care required of a physician in treating his patient, as well as any departure from that standard, must in most cases be evaluated only by others in the medical profession. ² In short, one claiming medical malpractice cannot ordinarily have his case submitted to a jury without expert testimony supporting his claim of professional negligence. But while our prior cases deal mainly with the application of those rules, they equally demonstrate that such expert testimony is not necessary where the matters to be proved fall within an area of common knowledge and developing lay comprehension of medical techniques and where the results of surgical or medical treatment, viewed in the light of all the circumstances, provide a sufficient evidentiary basis to support an inference of negligence. Swanson v. Chatterton, 281 Minn. 129, 160 N.W.2d 662 (1968); Fowler v. Scheldrup, 166 Minn. 164, 207 N.W. 177 (1926); Jensen v. Linner, 260 Minn. 22, 108 N.W.2d 705 (1961). ³ The general rule is well stated in Prosser, Torts (4 ed.) § 39:

'There are, however, some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a sponge in the patient's interior, * * * the thing speaks for itself without the aid of any expert's advice.' ⁴

'The thing or situation speaks for itself' is usually abbreviated by using the Latin phrase 'res ipsa loquitur.' It is merely another way...