Martin v. Perth Amboy General Hospital

• Decision Date: 05 February 1969
• Docket Number: Nos. A--810,A--548,A--590,s. A--810
• Citation: 250 A.2d 40,104 N.J.Super. 335
• Parties: Frank MARTIN, Plaintiff-Respondent, v. PERTH AMBOY GENERAL HOSPITAL, a corporation of the State of New Jersey, E. Virginia Dzurina and Sokol Kangsobhia, Defendants-Appellants and Cross-Respondents, and Ralph Lev, M.D., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 335

104 N.J.Super. 335

250 A.2d 40

Frank MARTIN, Plaintiff-Respondent, v. PERTH AMBOY GENERAL HOSPITAL, a corporation of the State of

New Jersey, E. Virginia Dzurina and Sokol

Kangsobhia, Defendants-Appellants and

Cross-Respondents,

and

Ralph Lev, M.D., Defendant-Appellant.

Nos. A--810, A--548, A--590.

Superior Court of New Jersey

Appellate Division.

Argued Jan 13, 1969.

Decided Feb. 5, 1969.

Raymond M. Tierney, Jr., Newark, for appellant Ralph Lev (Shanley & Fisher, Newark, attorneys, John F. Lynch, Jr., Morristown, and A. Dennis Terrell, Palmyra, on the brief).

Oscar F. Laurie, Chatham, for appellants and cross-respondents Perth Amboy General Hospital, E. Virginia Dzurina and Sokol Kangsobhia (Lieb & Teich, East Orange, attorneys, Aaron Dines, Trenton, of counsel).

Alfred A. Levinson, Perth Amboy, for respondent (Jacob, Alfred and Richard Levinson, Perth Amboy, attorneys).

Before Judges GOLDMANN, KOLOVSKY and CARTON.

The opinion of the court was delivered by

KOLOVSKY, J.A.D.

On December 15, 1964, at the Perth Amboy General Hospital (hospital), Dr. Lev, a cardiovascular surgeon, operated on plaintiff Frank Martin to remove an obstruction in his abdominal aorta. Following plaintiff's discharge from the hospital on December 28, 1964 he visited Dr. Lev on two occasions and was told that the increasing pain in his abdomen about which he complained was to be expected and would pass away. On February 12, 1965, an X-ray taken by the internist who had referred plaintiff to Dr. Lev disclosed that there was a foreign substance in plaintiff's abdomen. The internist so advised Dr. Lev who had plaintiff readmitted to the hospital. On February 13 Lev opened plaintiff's abdomen and removed therefrom a laparotomy pad--a surgical sponge--which had been left therein during the course of the first operation.

In this action for damages resulting from the laparotomy pad being left in his abdomen, plaintiff charged Dr. Lev, the hospital and three of its nurses with negligence. The jury returned a verdict of $36,000 against Dr. Lev, the hospital and two of its nurses, defendants Dzurina and Kangsobhia. It found no cause for action as against a third nurse, Mrs. Quan. Separate motions for new trial by Dr. Lev and by the other defendants were denied.

Thereafter, on application of the hospital and the two nurses for apportionment of the $36,000 judgment among defendants, the court ordered Dr. Lev to pay 50%, or $18,000, and the hospital and the two nurses as a group to pay the remaining 50%, with the hospital to pay no more than $10,000, the statutory limit of its liability. N.J.S. 2A:53A--8, N.J.S.A.

Dr. Lev appeals from both the judgment in plaintiff's favor and the order of apportionment. The hospital and the two nurses appeal from the judgment and the denial of their motion for a new trial, contending that the $36,000 verdict is excessive. The remainder of their brief embodies their argument in support of the judgment against Dr. Lev and the order for apportionment.

Much of the pertinent evidence is uncontradicted.

Plaintiff entered the hospital on December 4, 1964 for evaluation of his peripheral vascular disease by Dr. Lev, a cardiovascular specialist and the only such specialist associated with the hospital. An angiogram taken at Lev's direction disclosed that there was an obstruction in the abdominal aorta, the blood vessel which supplies blood to the arteries of the leg. Lev recommended an operation to remove the obstruction and restore the normal blood flow.

Dr. Lev performed the operation from about 2 to 7 P.M. on December 15, assisted by two other doctors as well as by a 'scrub' (sterile) nurse and a circulating nurse. When the operation began the scrub nurse was Miss Adamowitz; defendant Kangsobhia was the circulating nurse. At about 3:30 P.M., when the nurses' shift ended, as Dr. Lev knew it would, defendant Quan was substituted as the scrub nurse and defendant Dzurina as the circulating nurse and they continued on duty until the patient was removed from the operating room.

The surgical sponges used during the operation were supplied by the hospital. They were brought into the operating room in a sterilized laparotomy pack containing four laparotomy pads, 20 Raytex sponges and 15 tampons. The Raytex sponges, 4 8 in size, and the tampons were used for wiping or dabbing during the operation.

The laparotomy pads, described in the testimony as 8-inch square with a 4 or 5-inch attached string at the end of which was a metal ring 1 to 2 inches in diameter, were used primarily for the purpose of pushing aside intestines and other organs in the operative field and to separate one area within the operative field from another. Embedded between the folds of the laparotomy pad was a strip of radiopaque material which would show on an X-ray if the pad were left in the abdomen. (Although not material to the issues before us, we note that the testimonial description of the laparotomy pads differs from the measurements of the sample laparotomy pad marked into evidence as Exhibit DH--1 which has been furnished to us. That exhibit is a gauze pad measuring approximately 13 1/2 13 1/2 with an attached 6 1/2-inch string at the end of which is a heavy metal ring 1 3/4 inches in diameter.)

It is conceded that when the laparotomy pads were brought into the operating room, the metal rings were attached thereto and that at some time before they were used the rings were removed, this at the direction of Dr. Lev.

Before the operation began, the laparotomy pads and other sponges were placed in separate receptacles and counted by the two nurses with the count being recorded on a sponge count sheet. A second count was made at the change of shift when the new scrub nurse and circulating nurse came on duty. A third count was made at the completion of the operation. For some unexplained reason, the count as reported indicated that no sponge or pad was missing.

Dr. Lev testified that before ordering the final sponge count when the operation was completed and before he closed the wound, he made a visual and manual inspection of the abdomen to determine if a foreign substance had been left there. He made no further examination and did no further probing of the operative area for sponges after the count had been reported to him as correct.

The court's charge permitted the jury to find Dr. Lev liable on either or both of two bases: (1) that he himself was negligent or (2) that the nurses were negligent in counting the sponges, the jury being told that the nurses 'were, during the course of the surgery, as if they were (the doctor's) servants assisting in the performance of the operation even though they were actually employed by the defendant hospital (and were) at the same time * * * also acting as the servants of the defendant hospital.'

Lev argues the court erred in both aspects of the submission to the jury, contending that there was no evidence of his own negligence and no warrant in law for holding him liable for the negligence of the nurses.

We find no merit in the claims that there was no evidence to support a jury finding that Lev himself was negligent and that the court erred in permitting the doctrine of Res ipsa loquitur to be applied against him.

Foreign object malpractice cases form a unique class, presenting considerations different from those involved in other kinds of medical malpractice actions. Cf. Fernandi v. Strully, 35 N.J. 434, 441, 173 A.2d 277 (1961). As noted in Louisell and Williams, Trial of Medical Malpractice Cases, 4.04, p. 116:

'The most distinct and homogeneous group of malpractice cases are those resulting from inadvertent inclusions of foreign substances, gauze sponges, surgical needles, instruments, tubes, and the like, in patients' bodies at the close of surgery. For neither physician nor layman is it difficult to accept the fact that foreign bodies should not be left in the patient, and seldom today is there an honest controversy as to whether leaving them constitutes negligence. Defense of these claims is instead apt to be based on the statute of limitations or denial that defendant was the responsible person or that the inclusion actually caused damage.'

It cannot be gainsaid that among the duties owed by an operating surgeon to his patient is the 'duty of removing all foreign substances from the surgical wound before closing it,' and that 'a surgeon undertaking to perform an operation requiring the placing of sponges in the incision does not complete his undertaking until the sponges are properly removed.' 41 Am.Jur., Physicians and Surgeons, §§ 96, 97, p. 213.

Some jurisdictions--for example the State of Washington--hold 'that a surgeon (is) negligent as a matter of law in introducing a sponge and inadvertently leaving it in the plaintiff's body on closing the incision.' Conrad v. Lakewood General Hospital, 67 Wash.2d 934, 410 P.2d 785, 10 A.L.R.3d 1, 5 (Sup.Ct.1966); McCormick v. Jones, 152 Wash. 508, 278 P. 181, 65 A.L.R. 1019 (Sup.Ct.1929); see also, 41 Am.Jur., Physicians and Surgeons, § 97, p. 213; Louisell and Williams, Trial of Medical Malpractice Cases, 14.06, pp. 441--442. It should be noted that no question of emergency or other extenuating circumstance was involved in any of the cases cited. Cf. Harrison v. Wilkerson, 56 Tenn.App. 188, 405 S.W.2d 649, 651 (Tenn.Ct.App.1966).

Other jurisdictions have held that it is for the surgeon to acquit himself of negligence when it is shown that a foreign substance has been left in the wound. See, e.g., Davis v. Kerr, 239 Pa. 351, 86 A. 1007, 46 L.R.A.,N.S., 611 (Sup.Ct.1913).

But our highest court has spoken otherwise. Niebel v. Winslow, 88 N.J.L. 191, 95 A. 995 (E. & A.1915); Stawicki v. Kelley, 113 N.J.L. 551, 174 A. 896 (Sup.Ct.1934), aff'd 115 N.J.L. 190, 178 A. 754 (E. & A.1935). It is therefore not for us, as an intermediate appellate court, to evaluate the logic or desirability of the rules adopted by the cited...