Laughlin v. Christensen

• Decision Date: 02 July 1924
• Docket Number: No. 6432.,6432.
• Parties: LAUGHLIN v. CHRISTENSEN.
• Court: U.S. Court of Appeals — Eighth Circuit

1 F.2d 215 (1924)

LAUGHLIN v. CHRISTENSEN.

No. 6432.

Circuit Court of Appeals, Eighth Circuit.

July 2, 1924.

Charles E. Rendlen, of Hannibal, Mo. (Rendlen & White, of Hannibal, Mo., and Higbee & Mills, of Lancaster, Mo., on the brief), for plaintiff in error.

Frank E. Sheehan, of Omaha, Neb. (Berryman Henwood, of Hannibal, Mo., Edward P. Smith, Francis S. Howell, and William A. Schall, all of Omaha, Neb., on the brief), for defendant in error.

Before LEWIS, Circuit Judge, and BOOTH and SYMES, District Judges.

BOOTH, District Judge.

This is an action for damages for malpractice. For brevity the parties will be designated as in the court below. From a judgment in favor of plaintiff, defendant brings error. There was substantial evidence tending to establish the following facts:

Plaintiff, a woman about 48 years of age, residing in Nebraska, having been ill and under the care of physicians for some time, finally went to Kirksville, Mo., where defendant, in his hospital, on January 18, 1921, performed a surgical operation upon her. Plaintiff was in the operating room about 55 minutes. Her left ovary and both tubes were removed, and the retroverted uterus sewed up to the abdominal muscles. She remained in the hospital until February 10, 1921, when she returned to her home. While still in the hospital, but some days after the operation, plaintiff complained to the nurse several times of burning pain in the abdomen, but was told that it would disappear when the wound healed. After her return home, the pain still continuing, plaintiff consulted local doctors and was treated by them at intervals until after June 11, 1921. About March 14, 1921, an abscess, which had formed, broke through the scar tissue where the incision had been made for the operation. Pus was discharged in considerable quantities at first, and in lesser quantity from time to time thereafter. On June 19, 1921, the nurse, in attendance upon plaintiff at her home, discovered while dressing plaintiff's wound what appeared to be a thread protruding from the wound; she took hold of the thread with a pair of tweezers and pulled up to the opening of the wound a piece of gauze. She fastened the gauze so that it could not slip back into the wound and called the attending physician. With the aid of forceps he pulled the gauze from the wound. It was saturated with pus. It was folded in the manner of gauze sponges in common use in surgical operations. When unfolded it was about 18 inches long and 8 inches wide. From the time of the extraction of the gauze sponge until the time of the trial in December, 1922, pus and fecal matter were discharged from the wound, indicating that a fecal fistula had been formed.

Plaintiff claimed that the defendant had negligently left this gauze sponge in her abdominal cavity at the time of the operation, and the verdict of the jury sustained her contention. The assignments of error raise the following questions:

(1) Whether there was any substantial evidence for the jury that the gauze sponge was left in plaintiff's abdominal cavity by defendant.

(2) If so, whether there was any substantial evidence that it was negligently left there.

(3) Whether a certain hypothetical question propounded by defendant's attorney to a surgeon (witness for defendant) was improperly excluded.

(4) Whether a requested instruction as to the failure of Dr. Moak (one of plaintiff's doctors, before and after the operation) to testify was improperly refused.

1. As to the first question, the evidence shows that gauze sponges were used by the defendant at the operation. He and the nurse who assisted him, however, testified that no sponge was left in plaintiff's abdominal cavity after the operation; they based their testimony on a custom which they testified existed of always counting the sponges before and after an operation and of ascertaining that the numbers tallied. There was also evidence on the part of the defendant that the sponge which was claimed to have been found in the plaintiff differed slightly in size and texture from those used by the defendant at the time of the operation. There was also testimony that if a sponge had been left in plaintiff on January 18, 1921, the date of the operation, it would have become greatly decomposed by June 19, the date when it was claimed the sponge was found; but that the sponge which was claimed to have been found was very little decomposed. On the other hand, the testimony was well corroborated that a gauze sponge was taken from the abscess opening which had formed in plaintiff at the point of the operation. Plaintiff testified that the operation by defendant was the only one that she had ever undergone; she testified further that she began to feel discomfort and burning pain in the region where the abscess later appeared, shortly after the operation, and that the pain increased and continued until the sponge was removed. No explanation, except that claimed by plaintiff, was suggested to account for the presence of the sponge in plaintiff's abdominal cavity.

A careful consideration of all of the testimony has led to the conclusion that the question whether the sponge was left in the plaintiff's abdominal cavity by the defendant was properly submitted to the jury.

2. Was there evidence that the sponge was negligently left by defendant? The case was tried on the assumption by counsel and court that in view of the pleadings the doctrine of res ipsa loquitur did not apply. Without passing upon the correctness of that position, we proceed upon the same assumption here.

It is pointed out by defendant's counsel that there was no expert testimony offered on the question of negligence and it is insisted that the only admissible evidence on this question would be testimony of medical experts. This conclusion is reached by counsel, apparently, by arguing:

(1) That medical experts are the only persons qualified to testify whether the operation was negligently performed; and

(2) That the handling of the sponges was but a part of the operation.

The argument is ingenious, but it has failed to persuade us. It is true that there is a large class of malpractice cases in which the question or matter under investigation is so intricate and abstruse, or so little understood, that ordinary jurors would in all probability, know nothing about the same, but must be guided by opinions of witnesses having special knowledge. In this class of cases the plaintiff fails to make a case for the jury in the absence of testimony of a properly qualified expert witness.

In Ewing v. Goode (C. C.) 78 Fed. 442, Judge Taft, now Chief Justice, said: "But when a case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury."

The same general rule is laid down in many cases, of which the following are merely examples: De Long v. Delaney, 206 Pa. 226, 55 Atl. 965 (failure to use a turniquet); Henslin v. Wheaton, 91 Minn. 219, 97 N. W. 882, 64 L. R. A. 126, 103 Am. St. Rep. 504, 1 Ann. Cas. 19 (negligence in use of X-ray); Martin v. Courtney, 75 Minn. 255, 77 N. W. 813 (negligence in treatment of sepsis); McGraw v. Kerr, 23 Colo. App. 163, 128 Pac. 870 (negligence in diagnosing and treating fractured humerus); Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458 (negligence in operating on an eye for strabismus); Taylor v. Kidd, 72 Wash. 18, 129 Pac. 406 (negligence in treatment of anchylosed condition of shoulder joint); Loudon v. Scott, 58 Mont. 645, 194 Pac. 488, 12 A. L. R. 1487 (negligence in administering an anæsthetic).

There are, however, at least two other classes of cases dealing with the admission of expert testimony on the issue of negligence. (1) Those in which the question or matter under investigation is so simple that the jurors are as well able as experts to pass upon the same. Admission of expert testimony in this class of cases, is error. Milwaukee Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Inland Co. v. Tolson, 139 U. S. 551, 559, 11 Sup. Ct. 653, 35 L. Ed. 270; Lake v. Shenango Furnace Co., 160 Fed. 887, 903, 88 C. C. A. 69; Henion v. Railroad, 79 Fed. 903, 25 C. C. A. 223; National Biscuit Co. v. Nolan, 138 Fed. 6, 70 C. C. A. 436; Hunt v. Kile, 98 Fed. 49, 38 C. C. A. 641. (2) Those cases in which the question or matter under investigation is of such character that the opinion of expert witnesses thereon, though not indispensable, may yet be of material assistance to the jury. In this class of cases the admission or rejection of expert testimony rests in the sound discretion of the court. U. S. Smelting Co. v. Parry, 166 Fed. 407, 92 C. C. A. 159; U. S. v. Railway Company, 250 Fed. 382, 162 C. C. A. 452; Gillespie v. Collier, 224 Fed. 298, 139 C. C. A. 534.

Furthermore, it is not a universal rule, even when the alleged negligence of medical men is under consideration, that testimony by experts is indispensable. The following so-called "sponge" cases have been called to our attention: Niebel v. Winslow, 88 N. J. Law, 191, 95 Atl. 995; Cassingham v. Berry, 67 Okl. 134, 150 Pac. 139, 168 Pac. 1020; Ruble v. Busby, 27 Idaho, 486, 149 Pac. 722, Ann. Cas. 1917D, 665; Akridge v. Noble, 114 Ga. 949, 41 S. E. 78; Palmer v. Humiston, 87 Ohio St. 283, 101 N. E. 283, 45 L. R. A. (N. S.) 640; Samuels v. Willis, 133 Ky. 459, 118 S. W. 339, 19 Ann. Cas. 188; Harris v. Fall, 177 Fed. 79, 100 C. C. A. 497, 27 L. R. A. (N. S.) 1174. But in no one of these cases is such a rule laid down or applied. On the other hand, in Davis v. Kerr, 239 Pa. 351, 86 Atl. 1007, 46 L. R. A. (N. S.) 611, it was held, that if a sponge was proven to have been left in the abdominal...