McCormick v. Jones

• Decision Date: 06 June 1929
• Docket Number: 21565.
• Citation: 278 P. 181,152 Wash. 508
• Parties: McCORMICK v. JONES.
• Court: Washington Supreme Court

278 P. 181

152 Wash. 508

McCORMICK v. JONES.

No. 21565.

Supreme Court of Washington

June 6, 1929

Department 2.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Action by Maurice P. McCormick against E. O. Jones. Judgment for defendant, and plaintiff appeals. Reversed.

Parker J., dissenting in part.

Arthur M. Harris and George F. Hannan, both of Seattle, for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

FRENCH, J.

In the latter part of July, 1924, appellant, at that time an employee in the United States Navy Yard at Bremerton, was injured in an accident and sustained a broken back. The injury consisted of a fracture of a portion of the fifth lumbar vertebrae. He was treated for his injuries for some time at the Puget Sound Navy Yard by reason of the fact that he had been injured while an employee of the United States in a civil service department. Thereafter he was discharged from the Navy Yard hospital, and finally, under the direction of the United States Employees' Compensation Commission, of Washington, D. C., was sent to respondent for treatment. This was in September, 1925, 14 months after his back had been broken, appellant having in the meantime been treated by other physicians from time to time attempting to secure relief. Respondent recommended a bone transplant operation to immobilize the injured back. The operation was performed in the Swedish Hospital on the morning of November 23, 1925. Dr Jones, the respondent, was the chief operating surgeon, and was assisted by Dr. Buckner and by two nurses. The operation consisted in making the necessary incision, removing the portions of the bone that had been broken off, making a gutter in the spine, and putting in a bone graft, that is putting in place and fastening a long, narrow strip of bone that had been taken from the shin.

During the course of the operation there was a sudden hemorrhage which was checked by pressing a hot pack into the wound and leaving it until the operation was completed. The operation being completed, the hemorrhage having ceased, the hot pack was removed, the wound closed and sewed up. Through some inadvertence there was sewed up in the wound a sponge known to the medical profession as a 'twelve.' All of the witnesses agreed that it was not necessary or proper for the purpose of the operation to leave this sponge in the wound. Thereafter this sponge was removed. There is a plain dispute in the testimony as to when and under what circumstances this took place, Dr. Jones testifying that he removed the sponge about 11 days after the operation, at the same time he drained the wound and supplied two Dakin tubes; the nurses claiming that this sponge was removed about 6 weeks later, at the time Dr. Jones removed a small piece of old bone graft. After the operation there was an infection, and for some time appellant suffered severely, going from doctor to doctor until he was finally forced to undergo another operation to remove a piece of infected bone, evidently a part of the bone which was broken off at the time of his original injury, and now seems to have completely recovered.

This action was instituted to recover from Dr. Jones on the theory that the sponge referred to above had been negligently left in his back at the time of the original operation, that being more than a year after the date of his original injury, and that the leaving of the sponge in the wound at the time it was sewed up had been, to a considerable degree at least, responsible for the bad condition which existed thereafter.

The case was tried before the court with a jury, and from a verdict for the defendant this appeal follows. The jury by its verdict must have found either first, that there was no negligence, or second, that there was no damage, or both.

On the question of negligence we think little need be said. We think all of the witnesses who testified on the subject on both sides admitted that the leaving of the sponge in the wound was negligence. We also think that the court can say as a matter of law that when a surgeon inadvertently introduces into a wound a foreign substance, closes up the wound, leaving that foreign substance in the body, there being no possibility of any good purpose resulting therefrom, that act constitutes negligence. A fair reading of the testimony of all of the medical experts called on this case leads to that conclusion.

We do not believe that the minds of reasonable men differ on this subject, and that a mere statement of the facts conclusively shows negligence, and that appellant, being the head surgeon in charge of this operation, is responsible therefor. If the jury, therefore, found for respondent on the ground of no negligence, the appellant is entitled to a new trial.

On the other ground, namely, that no damage accrued, appellant strenuously insists that the jury were not correctly instructed on the question of damages and the measure of damages. The court gave the following instruction:

'If your verdict is for the plaintiff you will allow him such a sum as in your opinion will fairly and justly compensate him for the damages, if any, he has sustained as a proximate result of defendant's negligence, and in arriving at the amount of your verdict you should take into consideration all of the facts and circumstances established by the evidence. In determining the amount you cannot consider the original injuries he received, or any pain or suffering which he has endured or may endure in the future as a direct result of said injuries, or the pain and

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