Lacy v. G.D. Searle & Co.

• Decision Date: 31 October 1984
• Docket Number: No. 83C-SE-123,83C-SE-123
• Citation: 484 A.2d 527
• Parties: Jacqueline M. LACY and Daniel C. Lacy, her husband, Plaintiffs, v. G.D. SEARLE & CO., a Delaware corporation, Richard Raiber, M.D., Richard Raiber, M.D., P.A., a professional corporation of the State of Delaware, and Wilmington Medical Center, a Delaware corporation, Defendants.
• Court: Delaware Superior Court

Page 527

484 A.2d 527

Jacqueline M. LACY and Daniel C. Lacy, her husband, Plaintiffs, v. G.D. SEARLE & CO., a Delaware corporation, Richard Raiber,

M.D., Richard Raiber, M.D., P.A., a professional corporation

of the State of Delaware, and Wilmington Medical Center, a

Delaware corporation, Defendants.

Civ. A. No. 83C-SE-123.

Superior Court of Delaware,

New Castle County.

Submitted July 5, 1984.

Decided Oct. 31, 1984.

John G. Abramo, of Abramo & Abramo, Wilmington, for plaintiffs.

Warren B. Burt, Wilmington, for defendants Richard Raiber, M.D., and Richard Raiber, M.D., P.A.

TAYLOR, Judge.

Plaintiffs seek damages against defendants Richard Raiber, M.D., and Richard Raiber, M.D., P.A. [collectively Raiber] alleging medical malpractice by Raiber in connection with services undertaken relative to the use of an IUD by plaintiff Jacqueline Lacy.

Counts IX and X charge that Dr. Raiber is liable under the doctrine of res ipsa loquitur. Count IX charges that plaintiff employed Dr. Raiber to remove an IUD which was imbedded in her and that Dr. Raiber undertook to accomplish that result by performing a D & C, that during the procedure plaintiff's uterus was perforated, and that the procedure was under the exclusive control of Dr. Raiber and Wilmington Medical Center. Count X incorporates the previous allegations and adds that as a consequence of the perforated uterus Dr. Raiber performed a hysterectomy upon plaintiff later that same day and that that procedure was under the exclusive control of Dr. Raiber and Wilmington Medical Center.

I

Dr. Raiber contends that the allegations of Counts IX and X of the complaint which assert res ipsa loquitur should be dismissed because they do not comply with 18 Del.C. § 6853.

Plaintiff contends that since the motion was not made before answer and the appropriate assertion was not made in the answer but was made several months after the filing of the answer and was not made as an amendment to the answer, it cannot be treated as a motion to dismiss but must be treated as a motion for summary judgment. Relying on this contention plaintiff has submitted an affidavit which attaches a pathologist's report of findings concerning the removed organ.

Plaintiff also contends that it is inappropriate for the Court to consider the availability of res ipsa loquitur at this stage because Rule 304(c)(1) of the Delaware Uniform Rules of Evidence states:

(1) Whether or not the doctrine [of res ipsa loquitur ] is applicable should be determined at the close of the plaintiff's case.

According to the Comment which accompanies Rule 304, this procedural instruction is traceable to Delaware Coach Co. v. Reynolds, Del.Supr., 71 A.2d 69 (1950); Dillon v. GMC, Del.Super., 315 A.2d 732 (1974), aff'd, Del.Supr., 367 A.2d 1020 (1976); and Hornbeck v. Homeopathic Hosp., Del.Super., 197 A.2d 461 (1964). The quoted language closely tracks language in Reynolds. However, the issue before the Supreme Court in Reynolds was whether this Court acted correctly in submitting the issue of res ipsa loquitur to the jury instead of granting defendant's motion for directed verdict at the close of plaintiff's evidence. Hornbeck arose on motion for summary judgment; it involved a condition of necrosis (a granulating wound) which developed at the site where injection had been given. This Court in Hornbeck found that there was no medical testimony to the effect that the condition would not have occurred in the absence of negligence and granted summary judgment in favor of defendants. Dillon affirmed the denial of a defendant's motion for summary judgment where the buyer of a new car sought recovery based on res ipsa loquitur for damages caused by defective steering mechanism. The Supreme Court in Dillon considered the substantive merits raised by the motion for summary judgment and did not find that the matters should not be raised at the summary judgment stage. I conclude that the stage at which the applicability of res ipsa loquitur may be considered should be determined on a case-by-case basis considering the nature of the contentions, the sufficiency of the factual showing and the applicable standards of the doctrine.

Dr. Raiber contends that the availability of the doctrine of res ipsa loquitur in a medical malpractice case is controlled by 18 Del.C. § 6853 which provides:

... a rebuttable inference that personal injury or death was caused by negligence shall arise where evidence is presented that that personal injury or death occurred in any 1 or more of the following circumstances: (1) A foreign object was unintentionally left within the body of the patient following surgery; (2) an explosion or fire originating in a substance used in treatment occurred in the course of treatment; or (3) a surgical procedure was performed on the wrong patient or the wrong organ, limb or part of the patient's body. Except as otherwise provided herein, there shall be no inference or presumption of negligence on the part of a health care provider.

Although the quoted language makes no reference to res ipsa loquitur the report of the Delaware Medical Malpractice Committee which proposed the legislation states:

Section 6853 creates presumptions of negligence similar to the legal doctrine of res ipsa loquitur, (e.g., the thing speaks for itself) in certain specific factual situations. For example, a foreign object unintentionally left within the body, an explosion or fire occurring during the course of treatment, and surgery performed on the wrong patient or limb.

It will be noted that Rule 304(a)(1) of the Delaware Uniform Rules of Evidence defines res ipsa loquitur as "a rule of circumstantial evidence, not affecting the burden of proof, which permits, but does not require, the trier of the facts to draw an inference of negligence from the happening of an accident ...". Since the application of the doctrine of res ipsa loquitur results in the drawing of an inference of negligence from the existence of certain established facts, I conclude that the last sentence of § 6853, which bars drawing an inference or presumption of negligence on the part of a health care provider based upon facts which do not satisfy § 6853, makes res ipsa loquitur no longer applicable to cases involving health care providers if the facts do not fall within § 6853.

Clearly, Dr. Raiber was acting as a health care provider as defined in 18 Del.C. § 6801 when he undertook to treat plaintiff as alleged in the complaint and the complaint alleges negligence against him.

§ 6853 specifies three alternative situations under which an inference of negligence is permissible. The only one of these alternatives which bears consideration here is where "[a] foreign object was unintentionally left within the body of the patient following surgery". Plaintiff contends that this case falls within the quoted language because Dr. Raiber, after attempting surgically to remove the imbedded IUD, discontinued the surgery without removing the IUD. Therefore, plaintiff contends that the leaving of the IUD was unintentional and that the IUD was a foreign object left within her body.

The first consideration is whether the presence of the IUD in plaintiff's body after the first procedure on December 29, 1982 was a "foreign object ... left within the body of the patient following surgery". That phrase is not elaborated upon in the statute or the Committee report. Florida, in a statute directed toward the subject of health care malpractice, Fla.Stat. § 768.45(4), provides:

... the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical examination or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

Cf. 1 Medical Malpractice, Louisell & Williams, § 1404, p. 14-45, footnote 2. In my judgment, the phrase used in § 6853(1) was used to refer to an object which was not present in the person's body before commencement of the immediate health care provider procedure which was present in the person's body after conclusion of the procedure. In this case the IUD was present in plaintiff's body before the procedure commenced, and hence was not within the meaning of that phrase.

The second consideration is whether the object was unintentionally left within the person's body following surgery. This connotes that the health care provider must have not intended to leave the object, that is, that it was left inadvertently. Paragraphs 66 and 67 of the complaint allege that Dr. Raiber attempted to remove the IUD on December 22, 1982 and that on December 29, 1982, while plaintiff was under general anesthetic, he again attempted to remove it, but failed. The clear meaning of those allegations is that Dr. Raiber was aware of the need to remove the IUD but was unable to do so. There is no allegation that Dr. Raiber was unaware that he had not removed the IUD or that he unintentionally permitted it to remain.

I conclude that the res ipsa loquitur allegations of Counts IX and X of the complaint do not satisfy 18 Del.C. § 6853. Nor does the pathologist's report add any facts which would bring the case within § 6853. Therefore, treating this motion as a motion for partial summary judgment, it will be granted in favor of Dr. Raiber as to Counts IX and X.

II

Finally, Dr. Raiber challenges Count XI of the amended complaint insofar as the plaintiff's husband, Daniel C. Lacy, seeks damages because of his wife's inability to have children and for his witnessing the physical and emotional pain and suffering of his wife. Dr. Raiber contends that this claim exceeds the normal bounds of consortium and attempts to obtain damages for a by-stander who is not within the "zone of danger" and thereby violates the holdings of Robb v. Pennsylvania Railroad Company, Del.Supr., 210 A.2d 709 (1965); Mancino v. Webb, Del.Super., 274 A.2d 711 (1971); and Cosgrove v. Beymer, D.Del....