Ho v. Yee

• Decision Date: 29 May 1959
• Docket Number: NO. 4020.,4020.
• Parties: YOU GOO HO, ALSO KNOWN AS MRS. HO TI YUEN v. SAMUEL L. YEE AND EDMUND T. K. ING.
• Court: Hawaii Supreme Court

43 Haw. 289

YOU GOO HO, ALSO KNOWN AS MRS. HO TI YUEN

v.SAMUEL L. YEE AND EDMUND T. K. ING.

NO. 4020.

Supreme Court of the Territory of Hawai‘i.

Argued December 18, 1958.

Decided May 29, 1959.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT COURT FIRST CIRCUIT, HON. CALVIN C. MCGREGOR, JUDGE.

Syllabus by the Court

The verdict of a jury, finding that a doctor failed to give proper postoperative care and such failure resulted in mental and physical suffering and large expenditures by the patient, will not be disturbed where it is supported by substantial evidence.

After an operation where a piece of catheter draining a wound was accidentally broken off and left within the body of the patient, and the physician did not over a period of months inform the patient or her family, and the patient suffered from the unhealed wound over a period of many months, there is sufficient evidence for the jury to find that the attending physician was negligent in not informing the patient within a reasonable time the cause of her unhealed wound and of her intense pain.

Where it appears that an instruction to the jury did not affect its verdict, such verdict will not be reversed even though the instruction may have been erroneous.

Frank D. Padgett ( William F. Quinn and Robertson, Castle & Anthony on opening brief; Arthur R. Reinwald and Robertson, Castle & Anthony with Mr. Padgett on reply brief) for Dr. Edmund T. K. Ing, defendant-appellant.

Earl S. Robinson ( Fong, Miho, Choy & Robinson) for plaintiff-appellee.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY STAINBACK, J.

This is an action for malpractice against two physicians, Dr. Samuel L. Yee and Dr. Edmund T. K. Ing. The jury returned a verdict in favor of defendant Dr. Yee and against defendant Dr. Ing, awarding damages against the latter in the sum of $11,000. From this verdict and judgment Dr. Ing takes an appeal to this court. An appeal was also taken by the plaintiff from the verdict in favor of Dr. Yee but was dismissed by this court because it was not timely. (You Goo Ho v. Yee, 42 Haw. 229.)

Plaintiff is an elderly Chinese woman who had been treated for a number of years by Dr. Ing as her family physician. In March 1954 plaintiff was taken to the hospital with a severe illness of what was afterwards diagnosed as caused by gall stones as diagnosed by Dr. Yee who was called in by Dr. Ing as a specialist; this diagnosis was also verified in a consultation with Dr. Joseph Strode.

Dr. Yee operated on March 10 for the removal of gall stones with Dr. Ing assisting. After the removal of the stones both from the gall bladder and from the duct, Dr. Yee inserted a French catheter into the wound for drainage purposes. This catheter was furnished by the hospital and examined by the doctors. After the operation both doctors Ing and Yee attended the plaintiff in the hospital and on March 25 the catheter was removed. At the time it was removed from the wound, according to Dr. Yee's testimony, he noticed that the tip of the catheter, about 1 1/4 inches long, which was rounded and perforated, had failed to come out with the rest of the tube.

The patient was discharged on April 10, Dr. Ing signing the hospital report stating: “Abdominal wound was entirely healed. General condition good. She is discharged today and will follow at home or at office.”

Plaintiff contended that the negligent acts on the part of the defendants were, first, failure to remove the tube prior to completing the operation; secondly, their failure to provide postoperative care and failure to notify plaintiff and her family of the presence of the broken tube in plaintiff's abdomen.

Physicians testified at the trial that if that portion of the catheter were left in the patient's body, one of two things would happen: it would either become encysted or would follow the sinus created when it was inserted and finally extrude. The portion of the tube which remained in plaintiff's body was permitted to remain there until it finally extruded by natural process on May 1, 1955, more than a year after the operation.

Defendant Dr. Ing claimed the court below erred in instructing the jury with respect to res ipsa loquitur and in allowing the case to go to the jury on that theory. The defendant pointed out that the breaking of the catheter was not like the “sponge cases” wherein the doctrine of res ipsa loquitur had been applied, as the piece of catheter which was accidentally broken off in the patient's body was intentionally left inside her rather than to risk surgery which, in the opinion of the physician, would be dangerous. The particular instruction objected to was number 9 which instructed the jury that if they found plaintiff suffered injury resulting from a portion of the rubber tube being left in her abdomen after an operation, and if they should find the said rubber tube was under the control and management of the defendants, the fact of the injury itself would be deemed sufficient evidence to support a recovery in the absence of any explanation by the defendants tending to show that the injury was not due to their want of care, etc. Opposition was also made to plaintiff's instruction number 12 that when the doctrine of res ipsa loquitur is applicable, the jury may presume negligence in the absence of a reasonable and satisfactory explanation as to how the accident occurred. There were other instructions relative to care after the operation which need not be discussed here.

Without deciding that such instructions were erroneous, no harm resulted from the instructions as the jury necessarily found there was no negligence upon the part of the doctors in the breaking off and leaving of the catheter within the body of the plaintiff as the jury decided in favor of the operating physician, Dr. Yee. If the negligence was in the breaking off of the catheter and leaving the same within the body, then Dr. Yee was guilty of negligence for he alone had inserted and removed the catheter. The res ipsa loquitur instructions related only to the leaving of the portion of the catheter within the body of the plaintiff and not to the postoperative care and attention.

Obviously the jury found Dr. Ing's negligence was in the postoperative care of plaintiff, so even if the instructions were erroneous, as stated in the syllabus in W. W. Ahana v. The Insurance Company of North America, 15 Haw. 636 (1904), “A new trial will not be granted because of an erroneous instruction to the jury when it appears that the instruction did not affect the verdict.”

The next question is whether there is more than a scintilla of evidence to prove that the defendant was negligent in postoperative care and treatment and that such neglect caused damage to the plaintiff.

Several physician witnesses testified that such a wound needed care after the operation and such postoperative care was an absolute necessity and should be checked upon. Without attempting to give in detail the testimony of all of them, we shall point out some highlights in the testimony of some of these witnesses.

Dr. Faus, in testifying that such wound should be watched until healed, stated “I imagine they watched her very carefully.” Dr. Strode testified that such wounds needed care and even with patients on the other Islands he instructed them to come back to see how they were getting along.

The undisputed evidence of defendant's own witnesses was that there was a duty upon the part of the attending physician to give postoperative care during the healing of the wound and check upon it. Dr. Yee testified the general practice was that the family physician should carry on treatment subsequent to the operation and let the operating physician know if there are any “untoward symptoms that occur.” In fact, all the physicians agreed that after such an operation the wound should be watched.

In keeping the plaintiff in ignorance of the presence of the portion of the catheter left in the wound, Dr. Ing testified that at the time the tube was removed it was best not to tell the patient that part of the tube remained in her body because of her nervous condition. However, he did say that she should be informed of such fact at the proper time. Dr. Ing never did inform her of this although she continued to request at each visit she made to him the cause of the unhealed wound, and plaintiff was in constant worry and suffering from some unknown cause.

That Dr. Ing did not make any effort to check plaintiff's condition after she left the hospital is shown by the fact that his first visit was made upon a call by the plaintiff who was suffering from diarrhea. At that time she was told the wound was healing. Likewise, on September 3, the doctor's next visit, was where he was called by plaintiff or her husband. The third visit was September 8 at the doctor's office where plaintiff complained to the doctor of her inability to sleep, of her pain, and that the wound was not healing. She was given no information on this visit either as to the cause of her suffering. The fourth and final visit was September 14th where the doctor visited the plaintiff at her home upon request of plaintiff's husband, where again she was given no information as to the failure of the wound to heal although the doctor admitted that at such visit she complained of the wound not healing. At no time after plaintiff's September 14 call upon Dr. Ing did he make any effort to ascertain plaintiff's condition or give her any reason for her pain and the failure of the wound to heal.

After that, the plaintiff obtained the services of several other doctors.

Dr. Pang testified that the unhealed wound was the cause of plaintiff's nervousness and worry, as likewise did Dr. Sia. Plaintiff was much worried...