Lyu v. Shinn

• Decision Date: 02 June 1953
• Docket Number: NO. 2714.,2714.
• Citation: 40 Haw. 198
• Parties: SUNG WHA KIM LYU v. JAMES S. SHINN, M.D.
• Court: Hawaii Supreme Court

40 Haw. 198

SUNG WHA KIM LYU

v.JAMES S. SHINN, M.D.

NO. 2714.

Supreme Court of the Territory of Hawai‘i.

Argued November 13, 1952.

Decided June 2, 1953.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

Application of the doctrine of res ipsa loquitur to malpractice actions is limited to situations wherein it is possible for jurors, as laymen, to determine as a matter of common knowledge and experience that the consequences of professional treatment were such as ordinarily would not have followed if due care had been exercised.

In situations where the precise cause of death or injury is in doubt or is not conclusively established, the general rule is that a plaintiff is not considered to have waived or abandoned the inference created by the doctrine of res ipsa loquitur by the introduction of evidence tending to establish such precise cause.

In the absence of affirmative evidence establishing a standard of professional practice existing in the community at the time an operation is performed, the jury may not speculate or conjecture upon what constitututes such standard or whether a surgeon departed therefrom.

Upon review of an order granting a nonsuit the sole question for determination is the sufficiency of the evidence to support the allegations of the complaint by evaluating that evidence in its most favorable light and with every reasonable inference deductible therefrom being accorded to support such evidence.

A motion for nonsuit will be denied if there is evidence, amounting to more than a scintilla, to support the allegations of the complaint.

In malpractice actions medical experts only are qualified to express an opinion upon the proper surgical technique applicable to any particular operation. Such evidence, however, may be supplemented by other evidence of existing conditions, circumstances, and results surrounding the operation.O. P. Soares (also on the briefs) for plaintiff in error.

S. Kashiwa ( G. Kashiwa with him on the brief) for defendant in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY TOWSE, C. J.

In an action for the wrongful death of her son which occurred during a tonsillectomy, the plaintiff in error sought damages premised upon the alleged negligence of the defendant in error in performing the operation.

A motion for nonsuit was granted at the conclusion of the plaintiff's evidence upon the grounds that the doctrine of res ipsa loquitur did not apply to the facts established, and that there was not sufficient evidence amounting to more than a scintilla, warranting submission of the issues to the jury.

Writ of error brings that ruling to this court.

The evidence material to the issues before us will be reviewed in its most favorable interpretation. ( Estate of Rabinowitz, 58 Cal. Opp. [2d] 106, 135 P. [2d] 579; Louzader v. James, 107 S. W. [2d] 976; Sullivan v. S. S. Kresge Co., 236 Mo. App. 1191, 163 S. W. [2d] 811; Jackson v. Browning, 224 N. C. 75, 29 S. E. [2d] 21.) That evidence established that the deceased underwent a thorough preoperative examination and was found to be in good condition. The operation was scheduled and performed in the defendant in error's office. Two girls and two boys, who were members of the office of civilian defense, Kalihi aid station, had been invited by defendant in error to observe the operation as a practical demonstration which would benefit them in their civilian-defense duties. Their ages were not established. The defendant in error's office assistant and the office assistant of a doctor occupying adjoining offices were present to assist. Neither were registered nurses although the latter had assisted in office operations, particularly in the administration of general anesthetics, over a period of six years. Ether as a general anesthetic was administered by the drop method. The record indicates that one of the two office assistants administered the ether. This latter fact constitutes one of the principle issues determinative of the alleged negligence of the defendant in error.

During the operation, one of the boys from the aid station was checking the pulse rate by the forearm method. The defendant in error's office assistant was also recording the pulse at the neck. It was not established whether the aid station attendant was participating in the pulse reading with the acquiescence or at the request of the defendant in error. After removal of one tonsil and as the defendant in error was about to remove the other, the aid station attendant commented that the patient's forearm pulse was weakening, and called this fact to the doctor's attention. There is no evidence establishing or indicating that at or about this time the trained assistant noted any change or weakening in the pulse rate at the neck or that she so commented or notified the defendant in error. Thereafter it appears that the defendant in error exercised all of the skill and means at his command to revive the patient. A doctor in a nearby office was summoned to assist. Adrenalin and artificial respiration were administered. A pulmotor was employed for one half hour. All efforts at revival were unsuccessful. Cause of death was certified as “acute pulmonary edema from inhalation and administration of ether.”

Medical testimony adduced at the trial established that there are other signs in addition to a weakening pulse rate which indicate that a patient under anesthesia is being administered ether in an excessive amount: “* * * changes in the color of the skin; in the rate and character of the pulse; in the rate and depth of breathing, and the size of the pupils of the eyes, the presence or absence of gagging; certain reflexes of the eyelids; * * *.” A standard of practice applicable to office tonsillectomy operations in this city was also established. No adverse testimony was presented upon the issue of defendant in error's professional training. He did admit, however, that it was possible to revive a patient in similar circumstances by use of a pulmotor in excess of one half hour.

Four errors are assigned. They raise two issues: First, whether the trial court erred in ruling that the doctrine of res ipsa loquitur did not apply to the cause; second, did the trial court err in its finding that there was no substantial evidence of negligence, amounting to more than a scintilla, from which the jury could have found the defendant negligent under the evidence adduced by the plaintiff.

The test almost uniformly applied to determine whether the doctrine applies in malpractice suits is whether all the ultimate facts alleging negligence, or some of them, are required to be established by expert testimony; or whether “* * * a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.” (Cavero v. Franklin Etc. Benevolent Soc., 36 Cal. [2d] 301, 309, 223 P. [2d] 471; see 70 C. J. S., Physicians and Surgeons, § 62; 41 Am. Jur., Physicians and Surgeons, § 127 for collection of authorities.) Two types of this class of suits are first, situations wherein the alleged negligence is predicated upon the use of unsterile instruments generally; and second, operations wherein a foreign or infectious substance is negligently deposited or left in the body. The latter type are referred to as “sponge cases.”

The generally approved rule upon inapplicability of the doctrine is that it does not apply where the common knowledge or experience of men is not extensive enough to permit it to be said that the plaintiff's condition would not have existed except for negligence of the person to be charged. (Alexander v. Hill, 174 Va. 248, 6 S. E. [2d] 661; Quinley v. Cocke, 183 Tenn. 428, 192 S. W. [2d] 992; Wells v. McGehee, 39 So. [[2d] 196; see 70 C. J. S., Physicians and Surgeons, § 62; 41 Am. Jur., Physicians and Surgeons, § 128 for collection of authorities.) The rule is stated with clarity in the case of Loudon Et Al. v. Scott Et Al., 58 Mont. 645, 194 Pac. 488, 12 A. L. R. 1487; “The gravamen of this case is negligence, and negligence cannot be inferred from the fact alone that the patient died. * * * The Maxim ‘res ipsa loquitur,’ has no application to a case of this character. * * * Negligence is not to be presumed; it must be proved * * * and the plaintiffs were required to assume the burden of proving the negligence charged and that * * * death resulted proximately from such negligence * * *.” (Emphasis added.) The reason for the rule is cogently stated in Ewing v. Goode, 78 Fed. 442, 443: “A physician is not a warrantor of cures. If the maxim ‘res ipsa loquitur,’ were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ‘ills that flesh is heir to.”’ (See 41 Am. Jur., Physicians and Surgeons, §§ 103, 104, 127; 70 C. J. S., Physicians and Surgeons, § 62 for collection of authorities.)

The doctrine, on the other hand, has been held applicable in certain classes of malpractice suits, particularly those designated as “sponge cases.” The elements of the doctrine as applicable to those cases are clearly present: “Where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of proper care.” (Key v. Caldwell, 39 Cal. App. [2d] 698, 702, 104 P. [2d] 87; see also Mitchell v. Saunders, 219 N. C. 178, 13 S. E. [[2d] 242; 41 Am. Jur., Physicians and Surgeons, § 97, 70 C. J. S., Physicians and Surgeons, §...