Laws v. Harter
| Decision Date | 17 October 1975 |
| Citation | 534 S.W.2d 449 |
| Parties | John A. LAWS, Appellant, v. John S. HARTER, M.D., and Marvin A. Bowers, M.D., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Alan N. Leibson, J. Leonard Rosenberg, Louisville, for appellant.
John T. Ballantine, Ogden, Robertson & Marshall, Louisville, for appellees.
VANCE, Commissioner.
This is an appeal from a judgment entered pursuant to a directed verdict which dismissed appellant's claim.
The appellant was admitted to St. Joseph's Infirmary where thoracic surgery known as a Heller Procedure was performed on February 29, 1968, by the appellee Dr. John S. Harter. This surgery did not give the desired results and on March 18, 1968 a second type of thoracic surgery known as a Thal Procedure was performed by Dr. Harter. The appellee Dr. Marvin A. Bowers was anesthesiologist for the second operation.
In the Thal Procedure an opening was made in the chest wall through the scar tissue formed by the incision for the Heller Procedure. The Thal Procedure was considerably more complicated because once entry was gained to the chest cavity an additional incision was made through the diaphragm so that the surgeon had access to both the chest cavity and the abdominal cavity.
Before the incision in the diaphragm was closed a sponge count was made and reported to be accurate. The incision in the diaphragm was then sutured.
A second sponge count was made prior to closing the incision through the chest wall and it was discovered that one sponage was missing. A search for the sponge was made in the chest cavity to no avail.
The sponges contained an opaque material to make them visible in X-rays but neither Dr. Harter, Dr. Bowers nor the radiologist was able to locate the sponge in the patient although two X-ray pictures were taken for that purpose.
The appellees decided, upon medical considerations, that it would be better to close the patient and later explore for the missing sponge if it could be located. It should be pointed out that a sponge count which showed a missing sponge did not necessarily mean that the missing sponge was inside the patient since it was shown that used sponges sometimes fell upon the floor of the operating room and could stick to the shoe soles of operating room personnel and be carried from the operating room inadvertently.
X-rays of the appellant taken at a later date revealed a sponge located in his abdomen but he was not told of that fact. Dr. Harter testified that an exploratory operation on the stomach was necessitated because of a suspected retropertioneal fibrosis and during the course of this exploratory operation the sponge was removed. No retroperitoneal fibrosis was discovered.
The appellant developed a chronic empyema, a collection of pus in a localized area, in the chest cavity which required extensive hospitalization and resulted in serious physical impairment.
The appellant's theory of liability is as follows: (1) It was negligence per se for the doctor to leave a sponge inside the patient; (2) the sponge which was left inside appellant's body was the source of infection which caused the empyema; (3) in the alternative, the empyema was caused by the premature removal by Dr. Harter of a tube which drained the chest cavity and (4) additional surgery was necessary to remove the sponge.
We conclude that appellee, Harter, was negligent as a matter of law. It may be true, as he claims, that when it was...
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Forbes v. Osteopathic Hosp. of Maine, Inc.
...apparent as to lie within the understanding of laymen." Cox v. Dela Cruz, 406 A.2d 620, 622 n. 1 (Me.1979). See, e.g., Laws v. Harter, 534 S.W.2d 449, 450-51 (Ky.1975) (surgical sponge left in patient); Malone v. Bianchi, 318 Mass. 179, 181-82, 61 N.E.2d 1, 2 (1945) (dentist extracting toot......
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Eberhardt v. United States
...the patient's socket that were easily discovered by another dentist. Butts v. Watts, 290 S.W.2d 777, 780 (1956); see also Laws v. Harter, 534 S.W.2d 449, 451 (Ky. 1975) (holding that res ipsa loquitur applied when a surgeon left a sponge in the patient's body cavity); Meiman v. Rehabilitati......
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Perkins v. Hausladen
...Center, Ky., 444 S.W.2d 78 (1969), holding res ipsa loquitur applied where a bone was broken during therapy treatment; and Laws v. Harter, Ky., 534 S.W.2d 449 (1976), holding that res ipsa loquitur applied where a sponge was left in the patient during a surgical procedure. In all of these c......
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Witten v. Pack, 2005-SC-000414-DG.
...an incision after an inaccurate sponge count had failed to show that a sponge was missing was negligent as a matter of law. Laws v. Harter, 534 S.W.2d 449 (1975). However, we decline to extend the rationale of Laws to the present case. In Laws, there was no legitimate explanation for the sp......