Johnson v. Ely

• Decision Date: 09 July 1947
• Docket Number: 4.
• Citation: 205 S.W.2d 759,30 Tenn.App. 294
• Parties: JOHNSON v. ELY.
• Court: Tennessee Court of Appeals

205 S.W.2d 759

30 Tenn.App. 294

JOHNSON v. ELY.

No. 4.

Court of Appeals of Tennessee, Eastern Section.

July 9, 1947

Certiorari Denied by Supreme Court October 18, 1947.

Appeal in Error from Circuit Court, Knox County; John M. Kelly Judge.

Suit by Juantia Johnson against Dr. J. B. Ely for alleged negligence in leaving a needle in plaintiff's abdomen during an operation. From a judgment entered on a directed verdict in favor of defendant, plaintiff appeals in error.

Judgment reversed and cause remanded for another trial.

A. C. Grimm and Jennings, O'Neil & Jarvis all of Knoxville, for plaintiff in error.

Clyde W. Key, of Knoxville, for defendant in error.

McAMIS Judge.

This is a suit for damages based upon the alleged negligence of the defendant, Dr. J. B. Ely, in leaving a needle in plaintiff's abdomen during an operation for appendicitis. A verdict for defendant was directed at the close of all the evidence and the plaintiff appeals insisting there was material evidence to take the case to the jury.

The plaintiff, a young married woman, consulted the defendant, a competent and skilled surgeon of Knoxville, some months prior to June, 1941, for an infection of the Fallopian tubes diagnosed by defendant as chronic bilateral salpingitis. After being treated for this condition she developed symptoms of appendicitis and her appendix was removed by defendant on June 8, 1941. Defendant testified that about a week before the operation she complained of nausea and the pain she had been having moved 'higher in the region of the appendix.' Plaintiff described her pains just before the operation as 'cramping.' She testified that immediately after the operation and until a needle was removed from her abdomen in January, 1946, she suffered 'sharp, jabbing pain' in her right side in the region of the incision and that she complained of this condition to defendant repeatedly, but he assured her it was only her imagination and that her condition was satisfactory. Upon removal of the needle by Dr. Smith in 1946 she experienced no further pain.

The hospital chart and the testimony of other witnesses show that plaintiff suffered intense pain in the region of the incision; that she complained to the nurse in attendance and to the intern at the hospital. There is testimony that her general condition of health deteriorated following the operation; that she lost weight and became nervous though she had not been so before the operation.

When removed by Dr. Smith the needle was in the right lower quadrant of the pelvis within the peritoneal sac enfolded in the fat of the omentum.

The case both for the plaintiff and for the defendant is based largely if not entirely upon circumstantial evidence. Plaintiff relies upon the circumstance that the location and character of the pain she had previously suffered changed with, or immediately following, the operation, the location of the needle within the peritoneal sac when found by Dr. Smith and the fact that the sharp, jabbing pain persisted until the needle was removed and then ceased immediately and other circumstances as making an issue of fact as to whether the needle was left in her abdomen by defendant or one of his assistants. She offers no direct proof.

The defendant, likewise, offers no direct proof that it was not left in the would during the operation. He says that the technique used by him in removing the appendix, treating the stub and closing the incision would not call for the use of the needle removed by Dr. Smith which he insists is not a surgical needle but an ordinary sewing needle. His testimony is to the effect that, while it is possible that the needle was dropped into the incision, he has no knowledge that it was. He offers as possible explanations of the presence of the needle in plaintiff's abdomen: (a) That the needle may have been left in a gauze packing prepared by seamstresses at the hospital and used within the incision, (b) that it may have been introduced into the body in a gauze packing by Dr. Speissegger of Charleston, S. C., who did a curettment of the womb in 1943, and migrated to the omentum between the date of that treatment and the date of removal by Dr. Smith in 1946, (c) that it may have been swallowed during infancy and (d) that it may have entered the body without causing pain (and without plaintiff being conscious of its presence) through the foot or buttocks.

The rule is that a surgeon is liable for the negligence of nurses and operating assistants while under his special supervision and control during the operation.

Meadows v. Patterson, 21 Tenn.App. 283, 287, 109 S.W.2d 417. This is conceded.

If, as a matter of fact, the needle entered through the incision during the operation and the wound was closed without removing it the doctrine of res ipsa loquitur applies and, in the absence of a reasonable and satisfactory explanation, the jury may infer negligence. Annotation, 162 A.L.R. 1299; Casenburg v. Lewis, 163 Tenn. 163, 40 S.W.2d 1038; Meadows v. Patterson, supra.

But this doctrine cannot serve as a substitute for proof that the needle got into the body during the operation because plaintiff must place the instrumentality under defendant's exclusive control before res ipsa loquitur applies at all. Lewis v. Casenburg, 157 Tenn. 187, 7 S.W.2d 808, 60 A.L.R. 254.

The doctrine of res ipsa loquitur is not to be confused with circumstantial evidence. Res ipsa loquitur merely raises an inference, from the nature and circumstances of the occurrence causing the injury, that if due care had been exercised by the person in charge of the instrumentality, the casualty would not have occurred. Gill v. Brown, 130 Tenn. 174, 169 S.W. 752. In contrast, circumstantial evidence consists of proving facts and circumstances reasonably leading the mind to conlude from the facts established that another fact follows as natural and expected or a very probable consequence.

So, as we see it, the questions to be determined are: (1) Did the plaintiff offer evidence of circumstances from which the jury might conclude that the needle entered the patient's body during the operation, (2) If so, are the circumstances offered by defendant sufficient as a matter of law to dissipate the inferences flowing from these circumstances and (3) If not, has the defendant overcome the inferences of negligence with which he is burdened under res ipsa loquitur.

(1) The proof for plaintiff shows that the pain experienced before the operation was a 'cramping' pain, whereas, immediately after the operation, it was a sharp, jabbing pain which would characterize the pain caused by a sharp metal object like a needle; that the same pain persisted until the removal of the needle and immediately ceased; that the seat of the pain after the operation was in the region from which the appendix was removed and there was no bulging or puffing suggestive of an infection; that she lost weight, became nervous and suffered a general deterioration of health after the operation.

The defendant offers in explanation of these circumstances that the pain was caused by the infection of the Fallopian tubes but in this connection we note that Dr. Ely himself testified that bilateral salpingitis would cause pain in both sides and as we understand his testimony pain in the region of the appendix would be higher in the abdomen than pain incident to salpingitis. Dr. Smith testified that salpingitis would not cause a sharp pain such as described by plaintiff after the...