May v. Broun

• Decision Date: 19 January 1972
• Citation: 261 Or. 28,492 P.2d 776
• Parties: Evelyn M. MAY, Appellant, v. Dr. James R. BROUN and Dr. Roy P. Rasmussen, Jr., Respondents.
• Court: Oregon Supreme Court

Page 776

492 P.2d 776

261 Or. 28

Evelyn M. MAY, Appellant, v. Dr. James R. BROUN and Dr. Roy P. Rasmussen, Jr., Respondents.

Supreme Court of Oregon.

Argued and Submitted at Pendleton May 3, 1971.

Decided Jan. 19, 1972.

J. N. Hershberger, Hermiston, argued the cause for appellant. With him on the briefs were Morrison & Hershberger, Hermiston.

Thomas S. Moore, Portland, argued the cause for respondent Rasmussen.

George H. Corey, Pendleton, argued the cause for respondent Broun. With them on the brief were Morrison & Bailey, William H. Morrison, and George M. Joseph, Portland, and Corey, Byler & Rew, Pendleton.

Before McALLISTER, P.J., and DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOLMAN, Justice.

This is an action for damages arising out of alleged negligent acts by defendant doctors while they were performing a hemorrhoidectomy. From a judgment of involuntary nonsuit, plaintiff appealed.

One of the defendants was a general practitioner and plaintiff's regular physician. He associated the other defendant, a surgeon, for the purpose of performing the operation while he assisted.

As part of the operative procedure, an electrical instrument was used to cauterize blood vessels. This machine, which sat about six feet from the operating table, was connected by a cord to a small applicator, about the size and shape of a pen, which contained a needle that actually cauterized the vessels. An electrode, which is a flat, metal, rubber-backed plate about nine inches by seven inches in size, had been placed so that it was under the chest of the plaintiff as she lay face down on the operating table. The electrode was also connected with the machine. There was a pedal on the floor for the surgeon to press with his foot to activate the electrical current. By virtue of the electrode, the patient's body became a part of an electrical circuit.

Plaintiff's surgery was the fifth operation which defendants had performed that day, and they had used the machine in the prior operations. The first two times the surgeon attempted to use the applicator on plaintiff it did not deliver sufficient heat to cauterize the vessels properly, and both times the surgeon requested the circulating nurse to check the machine. Thereafter, it worked satisfactorily and the operation was completed. After the operation, it was found that plaintiff was burned where she had contact with the electrode. There is no evidence as to the cause of the injury, other than the testimony of the defendants, who were called as witnesses by plaintiff, to the effect that the machine had been hooked up incorrectly. It is apparent that they had no personal knowledge of this fact and were relying upon what they had been told by hospital employees. They testified also that it was possible for such a burn to have been caused by a malfunction of the machine.

Plaintiff settled a claim against the hospital and the circulating nurse and gave them a covenant not to sue. None of the hospital employees were called as witnesses. There is no testimony concerning the manner in which the machine was hooked up incorrectly, if such was the case, or whether it was possible, practical, usual, or safe medical practice for a surgeon to check the machine and the patient's relation to it before its actual use. One of the defendants did testify that there was no way of testing the machine without actually using it after plaintiff was connected to it.

The principal assignments of error involve the propriety of granting the involuntary nonsuit and whether the doctrine of Res ipsa loquitur is available to plaintiff under the facts of this case. As a result, it is necessary to elaborate the known circumstances surrounding this injury and what the evidence discloses concerning the manner of preparation in the hospital in question for an operation such as the one performed on plaintiff. Even though there is no testimony concerning the details of preparation in the present case, the defendants testified as to the preparation which usually was made, and their testimony was not contradicted.

All equipment used in the operating room, including the electrical cauterizer, was owned and cared for by the hospital. All persons in the operating room, with the exception of the anesthetist and the two defendants, were selected and paid by the hospital. Besides the anesthetist and the two defendants, there were present in the operating room a scrub nurse, a circulating nurse, and a nurse's aide. These persons were subject to the supervision of the chief surgeon during the operation.

After completion of the operation immediately prior to the one under consideration, the defendants retired to a doctors' lounge, or dressing room, to rest and to await preparation of the operating room for the surgery upon plaintiff. Usual procedure is that the operating room is cleaned, all used equipment is removed, and a new sterile pack is brought in and prepared for use. Those items that are required to be sterile, because of possible contact with the doctors or which the patient's operative area, are handled by the scrub nurse, who is subjected to sterile technique before she enters the operating room. Included in the sterile pack are the cauterizer applicator and the cord to which it is connected.

The patient, after being brought into the operating room on a wheeled cart, is anesthetized while he is still lying on the cart. Thereafter, the patient is removed from the part and is placed face down, with his knees doubled up under his abdomen. His chest is placed on the electrode, and the patient is, then, completely draped with sterile cloths except for a small opening at the operative area. The cauterizer applicator is pinned to the outside of the sterile draping, where it can be reached by the surgeon as need dictates. The doctors are notified when these preparations for the operation will be completed in sufficient time for them to commence scrubbing their hands and arms. After scrubbing for ten minutes, they enter the operating room while they hold their hands and arms before them to avoid contamination. There they are met by the scrub nurse, who places sterile gowns and gloves upon them. The operation then commences.

One of the defendants testified that he knew nothing about the cauterizing machine and had no idea how it functioned. The chief surgeon testified that he had used such a machine for many years, but he had never had any training concerning its mechanical operation. He knew how the machine functioned, but he had never set one up for an operation. He further testified that it was the circulating nurse's duty to set the machine up for the operation.

Plaintiff relies on the doctrine of Res ipsa loquitur as applied in Nicholson v. Sisters of Charity, 255 Or. 251, 463 P.2d 861 (1970), and Mayor v. Dowsett, 240 Or. 196, 400 P.2d 234 (1965). Mayor authorized the use of the doctrine in medical malpractice cases and set forth the following prerequisites to its application:

"* * * (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. * * * ' Prosser, Law of Torts (2d ed.) 201--202, § 42.' 240 Or. 196 at 214, 400 P.2d at 242.

In the present case, the inference can undoubtedly be drawn that plaintiff was injured as the result of someone's negligence other than her own. The principal question is whether, under the evidence, it can be said that the person or instrumentality which caused the injury was sufficiently within the control of the defendants for the doctrine to apply to them.

In Mayor, the plaintiff became permanently paralyzed after having been administered a spinal anesthetic. In Nicholson, a safety pin was left in plaintiff's abdomen upon the completion of an operation. Res ipsa loquitur was used in both cases to sustain a judgment against the defendants. Plaintiff here particularly relies upon Nicholson because, in that case, the defendants unsuccessfully made the same contention that is being made by the defendants in this case. In Nicholson, defendants contended that Res ipsa loquitur was not applicable because it was the nurse's duty to take care of and to account for the safety pins and that the doctors, therefore, lacked exclusive control of the agency causing the injury. The only safety pins in the operating room were those which came attached to the ends of rubber tubing sections which were used by the doctors to press aside internal organs within the operative cavity so that access could be gained to the primary operative area.

The application of Res ipsa loquitur in Nicholson was based upon the premise that, even if the nurse was negligent, the pin would not normally have found its way into the body cavity unless the surgeons were also negligent, because they had exclusive actual control of everything that went in and came out of the body cavity regardless of who might have had the duty to take care of and to account for the pins. It was based upon the premise that the pin normally would not have been left in the body cavity without the personal negligence of the doctors.

Before the doctrine of Res ipsa loquitur would apply to defendants, one of two situations would have to exist. It would have to be shown that it was more probable than not that either the defendants were personally negligent or someone was negligent for whose actions defendants were responsible under the doctrine of Respondeat superior.

A fair analysis of the evidence relating to the manner in which plaintiff was injured leads only to the conclusion that her injury was caused by a machine which was defective, or which was incorrectly hooked up in relation to plaintiff, or which was improperly operated.

It is our conclusion that the evidence is insufficient to...