Mogensen v. Hicks

• Decision Date: 19 September 1961
• Docket Number: No. 50347,50347
• Citation: 253 Iowa 139,110 N.W.2d 563
• Parties: Richard P. MOGENSEN, Appellee, v. Wayland K. HICKS and Dwayne Howard, Individually and as Hicks and Howard, a partnership; Ciba Pharmaceutical Products, Inc., a corporation; Lutheran Hospital, a corporation; Toller Drug Company, a corporation, Appellants.
• Court: Iowa Supreme Court

Page 563

110 N.W.2d 563

253 Iowa 139

Richard P. MOGENSEN, Appellee, v. Wayland K. HICKS and Dwayne Howard, Individually and as Hicks and Howard, a partnership; Ciba Pharmaceutical Products, Inc., a corporation; Lutheran Hospital, a corporation; Toller Drug Company, a corporation, Appellants.

No. 50347.

Supreme Court of Iowa.

Sept. 19, 1961.

Rehearing Denied Nov. 14, 1961.

Sifford & Wadden, and Harper, Gleysteen & Nelson, Sioux City, for appellants, Wayland K. Hicks and Dwayne Howard individually and as Hicks and Howard a partnership.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellant, Ciba Pharmaceutical Products, Inc.

Hess, Pendleton & Thompson, Sioux City, for appellee.

PETERSON, Justice.

This is an action seeking damages for malpractice. Plaintiff sued not only his physicians, Drs. Hicks & Howard, but Ciba Pharmaceutical Products, Inc., who produced the anesthesia under question, Lutheran Hospital, where the medical services were rendered, and Toller Drug Company from whom the anesthesia was purchased. The trial court sustained motion to direct verdict in favor of Toller Drug Company. The jury failed to return a verdict against Lutheran Hospital. A verdict of $8,000 was returned against Drs. Hicks & Howard, and Ciba. They have appealed.

Plaintiff's petition contained two counts. Count I was based on the doctrine of res ipsa loquitur. Count II alleged specific negligence. The court sustained motion to strike Count II. Plaintiff has not appealed from the adverse orders of the court, nor from the failure of the jury to return verdict against Lutheran Hospital.

Plaintiff is a young man 28 years of age. He had experienced some bleeding when he urinated. His family physician, Dr. Vangsness, arranged with Dr. Hicks, a specialist in urology, to make a cystoscopic examination on the morning of September 27, 1957, at Lutheran Hospital in Sioux City.

Plaintiff was brought into a room known as the cystoscopic room, and placed on a table near the center of the room. Elfrieda Aljets, an experienced and registered nurse, was on duty and made all the preliminary arrangements as to complete cleanliness and sterility. Walter M. Trizala was Dr. Hicks anesthetist. He was a technical sergeant during the war, working in the urology department in a hospital in Germany, administering topical anesthesia. Since his discharge from the army he had worked for Dr. Hicks about ten years. He had administered between four and five thousand anesthetic applications.

The only persons in the room were plaintiff, the nurse, Mr. Trizala and Dr. Hicks. While Mr. Trizala was preparing plaintiff for the examination Dr. Hicks was talking with Dr. Vangsness, the family physician, immediately outside the door of the room, a few feet from the examination table.

The anesthesia which Dr. Hicks was using was known as pyribenzamine, manufactured by defendant Ciba. After several years of research and after approval of the Federal Food and Drug Administration in October, 1954, the drug was placed on the market in the spring of 1955.

Dr. Hicks had used it for several months. Mr. Trizala had administered it successfully as a topical anesthesia between 30 and 40 times. Topical administration means it is used on the skin as a local anesthesia for the part of the body affected.

Mr. Trizala brought a new bottle of the anesthesia with him, which Dr. Hicks had purchased a few days earlier at Toller Drug Company. The seal was broken in the presence of the nurse, and each read the name of pyribensamine on the label, out loud, as a double check.

The nature of the examination was through the penis, in order to examine the bladder, kidneys and prostate gland, for the purpose of finding the basis of the bleeding.

To do this without pain or discomfort to the patient, it was necessary to anesthetize the penis.

Mr. Trizala and the nurse placed 5 c.c.'s of pyribensamine in a sterilized syringe, and Mr. Trizala applied the anesthesia. He had injected from 1 to 1 1/2 c.c.'s when plaintiff said he felt a burning sharp pain. Mr. Trizala at that time said he noticed the skin around the urethra became white. He ceased further injection and called Dr. Hicks, who was standing close by. Dr. Hicks immediately decided not to proceed with the examination that morning, and thoroughly washed out the penis with sterile water. The Doctor testified: 'It was a good anesthesia. I had no trouble using it with other patients. My opinion is that plaintiff had an allergic reaction.'

Plaintiff was removed to a hospital room, and was in the hospital four days.

Dr. Louis J. Frank, an experienced dermatologist was called. He said he saw plaintiff and 'observed some swelling in the head of the glans surrounding the urethea. There was some inflamation there, yet it did not apear to be very severe as I saw it. He had no difficulty passing urine. * * * we put him on steriod therapy internally, which was used to help control allergic reactions * * * and wet packs locally.' Dr. Frank was asked as to what, in his opinion, caused the condition described by plaintiff. His answer was: 'My opinion was that he had an allergic reaction to pyribenzamine which was used as a local anesthetic.'

Plaintiff was away from work two weeks. His employer was kind and paid him his wages for the time off. When he returned he had to do light work for three or four weeks. In February of 1958 Dr. Hicks made the examination which had been contemplated in September under a general anesthetic. Plaintiff was in the hospital two or three days. He said thereafter the pain persisted for six or eight weeks. He said that at the time of trial he still had a little pain, and was still having some 'spraying' action when urinating.

I. The only question in the case is whether the doctrine of res ipsa loquitur is applicable. If not, the motion by defendants, for judgment notwithstanding verdict, should be sustained.

The essential component parts of res ipsa (as we will denominate the doctrine) are: a. The instrumentalities causing the injury must have been under the exclusive control of defendants, and b. The happening of the injury must be such that in the ordinary course of events it would not occur without lack of due care on the part of defendants.

II. The doctor was not in full control of the instrumentalities involved. He controlled the surgical instruments and the medicine, but he had no control over the condition and reactions of his patient. The allergic reaction of plaintiff in the instant case was an element beyond his control.

The doctrine of res ipsa loquitur should be used sparingly. Shinofield v Curtis, 245 Iowa 1352, 66 N.W.2d 465, 471, 50 A.L.R.2d 964; 65 C.J.S. Negligence § 220(10).

A doctor's constant contact are with the frailties, idiosyncrasies, physical and mental weaknesses, and allegies, of human nature. They may affect the condition, and yet are beyond his control.

It is for this reason that in many medical ceses the doctrine of res ipsa has been rejected. Berg v. Willett, 212 Iowa 1109, 232 N.W. 821; Gebhardt v. McQuillen, 230 Iowa 181, 297 N.W. 301; Lippard v. Johnson, 215 N.C. 384, 1 S.E.2d 889; Prewitt v. Higgins, 231 Ky. 678, 22 S.W.2d 115; Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493, 494; 53 A.L.R.2d 148; Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425.

In Gebhardt v. McQuillen, supra, [230 Iowa 181, 297 N.W. 303] the court refused to apply the doctrine, and said: 'In fact the rule of res ipsa loquitur is seldom applied to cases of malpractice by physicians or surgeons. * * * The physical condition of the patient, the nature of the injury--many things over which the physician has no control--may enter into the case and affect the result * * * the rule of res ipsa loquitur does not apply, because one of its essentials is lacking--the physician or surgeon does not have complete and exclusive control over the instrumentality with which he is working.'

Lippard v. Johnson, supra, involved a circumcision operation; a blister arose at the site, and decay set in. The court refused to apply the doctrine of res ipsa, and said: 'Therefore, to say that an unexpected, unanticipated and unfavorable result of a treatment by a physician invokes the application of the doctrine of res ipsa loquitur, would be * * * to destroy its recognized usefulness in proper cases. * * * 'Practical application of the medical science is necessarily to a large degree experimental. Due to the varying conditions of human systems the result of the use of any medicine cannot be predicted with any degree of certainty. What is beneficial to many sometimes proves to be highly injurious to others.' Moreover, a physician is not a warrantor of cures nor an insurer.

In Hawkins v. McCain, supra [239 N.C. 160, 79 S.E.2d 500], the doctor prescribed a treatment which had an adverse effect, and the patient sued. The court said: '* * * Furthermore, if it was an approved and acceptable treatment and the dosage as prescrived proper, the mere fact that she had an unfavorable reaction from its use would not make the doctrine of res ipsa loquitur applicable.'

The evidence does not sustain plaintiff's claim that defendants were subject to the first requisite as to res ipsa loquitur.

III. The other element in res ipsa is that the occurrence is such as in the ordinary course of events would not happen if reasonable care had been used. The latin phrase 'res ipsa loquitur' means 'the thing speaks for itself.'

We have already held in Division II that res ipsa is not applicable. Under the facts and circumstances of the case at bar and under previous decisions of this court pertaining to such element, the second element of res ipsa is also absent. Orr v. Des Moines Electric Light Co., 207 Iowa 1149, 222 N.W. 560; Bonowski v. Revlon, Inc. et al., 251 Iowa 141, 100 N.W.2d 5; Shinofield v. Curtis, supra; Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 11 A.L.R.2d...