Malinowski v. Zalzal, 73-41-A

• Court: United States State Supreme Court of Rhode Island
• Citation: 317 A.2d 875,113 R.I. 90
• Docket Number: No. 73-41-A,73-41-A
• Parties: Anita B. MALINOWSKI et al. v. Andre H. ZALZAL, M.D. ppeal.
• Decision Date: 17 April 1974

Page 875

317 A.2d 875

113 R.I. 90

Anita B. MALINOWSKI et al. v. Andre H. ZALZAL, M.D.

No. 73-41-Appeal.

Supreme Court of Rhode Island.

April 17, 1974.

[113 R.I. 94] Leonard A. Kamaras, Anthony DiPetrillo, Providence, for plaintiffs.

Keenan, Rice, Dolan & Reardon, Leonard A. Kiernan, Jr., Providence, for defendant.

OPINION

KELLEHER, Justice.

This medical malpractice action was tried before a Superior Court jury. The jury returned a verdict for the defendant physician. The trial justice denied the plaintiff patient's motion for a new trial. She appeals.

Today, defendant practices medicine in nearby Massachusetts. He specializes in the allied fields of obstetrics and gynecology. However, in March 1968, he was chief resident ¹ at the Providence Lying-In Hospital. On March 3, 1968, plaintiff was admitted to the hospital. A premature birth was in the offing. The next day, March 4, she gave birth to a daughter who weighed in at four pounds 15 ounces. The defendant, in delivering the infant, performed a surgical procedure known as a median episiotomy. ²

The hospital records disclose the following notations relative to plaintiff's postnatal condition:

March 5 Patient 'doing well'-'ambulatory'

March 6 'Appetite good'

March 7 8 a.m. 'Complains of pain in perineum'

March 7 11 a.m. 'Perineal pain decreased'

March 7 10 p.m. 'Speculum exam done; indication-foul smelling vag. discharge 1 Gauze sponge removed from vagina.'

March 8 Patient 'feeling cheerful & healthy.'

The plaintiff was 'discharged' from the Lying-In Hospital on March 9, 1968. She began this suit on March 10, 1970, more than two years after the sponge had been removed from her vagina. At trial she testified ³ that she was unaware of the sponge's presence until two weeks after she had left the hospital. However, in cross-examination she acknowledged that, in reply to a pretrial interrogatory, she had indicated that she was aware of the removal of the sponge during the time she was hospitalized.

At the trial, defendant ⁴ took full responsibility for his failure to remove the sponge once the delivery had been completed. The sponge is described as a gauze pad measuring 4 4 and having a thickness of 2 or 3 millimeters. The defendant expressed the belief that the presence of the sponge had no adverse effect on plaintiff's health. At most, he said, the sponge caused the vaginal seepage to become malodorous and once the sponge was removed, the odor vanished rapidly.

The sole objection before us is to the trial justice's denial of a new trial. In such circumstances we look at the evidence in the light of the charge given and then determine whether he has misconceived or overlooked material evidence on a material point, or whether he was clearly wrong, having in mind that the trial justice in making his independent appraisal of the witness's credibility acts as a thirteenth juror who can in certain instances come to a completely different conclusion from that reached by the jury. Gordon v. Campanella Corp., R.I., 311 A.2d 844 (1973).

In his charge, the trial justice told the jury that plaintiff had the burden to prove defendant's negligence and that such negligence had injured her. If the jury found for plaintiff on both these issues, it was then told to consider whether the action could be maintained in the light of the fact that the litigation was commenced more than two years after the sponge's removal. In speaking on the statute of limitations, the trial justice pointed out that the burden of proof on this issue was upon defendant. He then followed the rule laid down in Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968), where we said that the statute does not begin to run in a medical malpractice action until the plaintiff discovers or in the exercise of reasonable diligence should have discovered that she had been injured as a result of the defendant's negligence.

In denying plaintiff's motion for a new trial, the trial justice minced no words. He 'wholeheartedly' approved the jury's verdict as it related to damages and described plaintiff as 'an out-and-out liar' who 'was laying it on trying to get some money from the doctor clear and simple.' He found defendant negligent but refused to buy plaintiff's tale of cramps, upset stomach and sleepless nights. Rather, he saw no difference in the presence of the sponge and the almost universal female use in this country of the sanitary...