Horner v. Northern Pac. Beneficial Ass'n Hospitals, Inc.

• Decision Date: 13 June 1963
• Docket Number: No. 36405,36405
• Citation: 62 Wn.2d 351,382 P.2d 518
• Court: Washington Supreme Court
• Parties: Pauline HORNER, a widow, Respondent. v. NORTHERN PACIFIC BENEFICIAL ASSOCIATION HOSPITALS, INC., a corporation, Appellant.

Page 351

62 Wn.2d 351

382 P.2d 518

Pauline HORNER, a widow, Respondent. v. NORTHERN PACIFIC BENEFICIAL ASSOCIATION HOSPITALS, INC., a corporation, Appellant.

No. 36405.

Supreme Court of Washington, Department 1.

June 13, 1963.

Skeel, McKelvy, Henke, Evenson & Uhlmann, Frederick V. Betts, Seattle, for appellant.

Miracle, Treadwell & Pruzan, Seattle, for respondent.

HALE, Judge.

This action at law is the result of injuries claimed to have been incurred during surgery. The sole question essential to determine this appeal is whether res ipsa loquitur applies.

Respondent, an X-ray technician, was a member of a prepaid medical insurance plan and entitled to medical and hospital care from the appellant which operates a hospital in Tacoma. On June 17, 1957, she entered appellant's hospital as a patient to have a hysterectomy, an abdominal operation involving removal of the uterus.

Respondent was given a preoperative sedative, taken to surgery by cart, and placed on her back on an adjustable operating table. Her right arm was extended to the side on what is called an 'arm board' for injection of sodium pentothal and curare, a muscle relaxant, while her left arm was kept at her side and a blood pressure cuff applied to it. Across the top of the left shoulder a padded, metal, crescentshaped brace, which projects upward from the operating table, was securely fixed to prevent the patient from sliding. Her feet were lowered, by means of lowering the end of the table, and were wrapped in cloth which was then tied beneath the table to prevent sliding in that direction. The patient was placed in what the medical profession calls the Trendelenburg position, that is, feet lowered, head and shoulders slightly lowered, and the abdominal area slightly elevated. Placing the abdominal area on a higher plane than that of the remainder of the body is recognized medically as the approved position for the performance of the type of abdominal surgery called for in this operation.

After placing respondent in the Trendelenburg position, a general anesthetic was administered to her, and the hysterectomy was successfully performed.

When respondent regained consciousness in her hospital room, she became aware of an itching sensation in her shoulder and back. She attempted to move her right arm but found that it was paralyzed. This paralysis of respondent's right arm was described by one doctor as a severe traction brachioplexus neuropathy, and by other doctors as due to an injury of the brachial plexus, probably resulting from trauma or traction or pressure. Plexus, as used here, means a network of interlacing nerves located in the neck, shoulder and armpit, and composed of the front or anterior branches of the first thoracic and lower four cervical nerves running through the forward aspect of the shoulder to the armpits.

Paralysis of the right arm persisted in respondent for a period of over four years in slowly diminishing degrees through courses of medical treatment and series of physical therapy treatments, until the time of trial, October, 1961, by which time most of the symptoms had disappeared. Appellant gave no explanation as to the cause of the injury other than to show that this type of paralysis may be produced by some form of trauma, pressure or traction while a patient is under anesthesia. Respondent's action against the appellant hospital corporation, which operates the hospital and employed all of the medical and nonmedical personnel connected with her surgery, resulted in a verdict of $25,000.

Appellant hospital appeals, urging several assignments of error. Among these is error claimed by virtue of a summary judgment dismissing appellant's affirmative defense to the effect that respondent had, as a member of appellant's predecessor, agreed under its bylaws to absolve any officer, physician or surgeon from any liability caused by negligence or malfeasance. Since appellant here is a successor to the association of which respondent was a member and no such agreement was made by respondent with appellant, we find no error in the trial court's dismissal of this affirmative defense and believe it unnecessary to comment on the legal principles sought to be invoked by this assignment of error.

The case turns on res ipsa loquitur. If the injuries described by respondent to the jury occurred under such circumstances as to warrant application of the res ipsa loquitur doctrine, the judgment should be affirmed. If not, we should reverse.

The instruction upon which this appeal depends reads:

'Evidence is of two kinds--direct and circumstantial. In giving direct evidence, a witness testifies directly of his own knowledge concerning facts to be proved. Circumstantial evidence is proof of certain facts and circumstances from which may be inferred other and connected facts which usually and reasonably follow according to the common experience of mankind.

'The value and weight of circumstantial evidence are to be determined from its character and nature and from its relation to all of the other facts otherwise established by the other evidence in the case. Nothing in the nature of circumstantial evidence renders it less valuable than other evidence.

'In connection with the foregoing, you are instructed that it is for you to determine whether the manner of the occurrence of the injury sustained by Mrs. Horner, and the attendant circumstances connected therewith are of such character as would, in your judgment, warrant an inference that the injury would not have occurred had due diligence and care been exercised by defendant's employees.

'The rule is that when an agency or instrumentality which produces injury is under the control of a defendant or its employees, and the injury which occurred would ordinarily not have resulted if those in control had used proper care, then, in the absence of satisfactory explanation, you are at liberty to infer (though you are not required to so infer) that the defendant, or its employees, were at some point negligent, and that such negligence produced the injury complained of by the plaintiff.' ¹

Appellant forcibly argues that the foregoing instruction was error; that this is no case for res ipsa loquitur; that a finding of negligence here was pure speculation; and that there was neither proof of negligence in performing the surgery nor evidence that the hospital in any way departed from the standards of care within the community.

We must first ascertain from the facts in the case, rather than from the common experience of mankind, whether respondent's paralysis was of such a nature, or was produced in so unusual a way or under such strange circumstances, as to permit the inference of negligence in its causation without further evidence.

Dr. Wayne Zimmerman, an orthopedic surgeon, testified:

'We always try to posture and position a patient for two things, the position that aids the surgery and for the protection of the patient.'

He stated that he has an occasional occurrence of this nature in his own practice but could not determine what caused the injury to the respondent.

Dollie Kindelan, a surgical nurse and anesthetist with a combined experience in both phrases of medical work of more than thirty years, and which included services as anesthetist in appellant's hospital for over twenty years, testified that, in her years of participating in abdominal surgery, she had never known a patient to come out of surgery with a paralyzed arm.

Dr. William K. Sata, specialist in neurology, testified that the injury here was due to trauma during surgery; that it came from an external force upon the brachioplexus; and that it was unrelated causally to the abdominal surgery. In his practice, restricted to treatment of the nerves and nervous system, Dr. Sata testified that he saw from 3 to 6 injuries of this sort following general surgery during a year.

Evelyn Phillips, a nurse-anesthetist, administered the anesthetic to respondent and testified that she had acted as anesthetist in at least 5,500 operations and, until the case at bar, she had never known a patient to come out of anesthesia with a paralysis or injury to the nerve.

Dr. Edward Anderson, a specialist in general surgery, performed the surgery. He said he had no personal recollection of the operation and the positioning of respondent on the operating table but, relying upon the medical records of the operation, testified that the operation took an hour and that the table was titled for about 40 minutes of this time. He stated that certain muscles of the arms and legs could become paralyzed and injury to the brachioplexus produced through faulty positioning of the patient on the operating table. He also stated that injury to the brachioplexus might result from traction on the wrists and pressure on the shoulder regions when a patient, under general anesthesia, is in the Trendelenburg position. He was also of the opinion that external rotation of the extended arm during anesthesia can injure the brachioplexus and produce the injuries described by the respondent.

Dr. Lloyd Durkin, specialist in neurological surgery, stated that this type of injury was not uncommon when a patient is under anesthesia, but later declared that an injury such as this ordinarily does not occur in operations for a hysterectomy. Dr. Durkin pointed out that injuries of this character can happen when a patient, under anesthesia, is transferred to and from the hospital cart and operating table and is returned to bed from surgery. He testified that injuries of this type had happened...