Mondot v. Vallejo General Hospital

• Decision Date: 16 July 1957
• Citation: 152 Cal.App.2d 588,313 P.2d 78
• Court: California Court of Appeals Court of Appeals
• Parties: Lawrence J. MONDOT and Mary Mondot, Plaintiffs and Appellants, v. VALLEJO GENERAL HOSPITAL; F. Burton Jones, et al., Defendants, F. Burton Jones, Respondent. Civ. 5467.

Page 78

313 P.2d 78

152 Cal.App.2d 588

Lawrence J. MONDOT and Mary Mondot, Plaintiffs and Appellants, v. VALLEJO GENERAL HOSPITAL; F. Burton Jones, et al., Defendants, F. Burton Jones, Respondent.

Civ. 5467.

District Court of Appeal, Fourth District, California.

July 16, 1957.

Melvin M. Belli, San Francisco, Augustine, Bryans & Ragen, George Bryans, San Diego, for appellants.

John W. Holler, San Diego, and Cranston L. Hopkins, Vallejo, for respondent.

MUSSELL, Justice.

This is an action for damages alleged to have been caused by the negligence of defendant F. Burton Jones, a physician and surgeon, in that on or about the 5th day of April, 1937, in the course of an operation upon plaintiff Mary Mondot and after opening plaintiff's abdominal cavity, said defendant 'negligently and carelessly lost and left and caused and permitted to be left in plaintiff's body a piece of rubber, plastic or foreign material and did close the incision with said piece of rubber, plastic or other foreign material remaining in plaintiff's abdomen.' A jury trial resulted in a verdict in favor of the defendants after the trial court directed the jury to return such a verdict and plaintiffs appeal from the judgment entered in accordance therewith.

In December, 1936, plaintiff Mary Mondot, at the request of her family doctor, entered the Scripps Metabolic Clinic at La Jolla for a physical examination. After examination and study, the clinic reported she was suffering from an overian deficiency due to some pelvic inflammatory process, then quiescent. On April 5, 1937, defendant F. Burton Jones performed an abdominal operation on her to correct the position of her uterus and to free abhesions. Dr. Jones testified in this connection that he found that the entire pelvis was filled with a mass of adhesions which anchored the uterus tightly; that these were 'freedup' sufficiently to do the work that was necessary to replace the uterus to its normal position; that the tubes and ovaries were 'freed-up' and that an appendectomy was also performed prior to closing due to the fact they found considerable adhesions and some evidence of chronic scarring about the appendix; that he used surgical gloves and that before closing, a sponge count was made by the nurse.

For several years subsequent to this operation plaintiff suffered pain and discomfort. During 1938-1940 she developed nagging back pains an inch or two above the bottom of her spine and on July 24, 1953, her coccyx was removed, after which she was relieved of the back pains for a time but later they became worse. On January 31, 1953, plaintiff first met Dr. Frank J. Ragen, who treated her for urinary tract infection. She was admitted to the Chula Vista hospital on April 3, 1953, with a diagnosis of lumbosacral strain and, upon her entry to the hospital, Dr. Ragen reported that in his examination he found abdomen and pelvic regions normal and there was nothing to indicate that she had a cyst on the adnexa, such as appeared when he operated on January 25, 1955. In May, 1953, she had a cautery to her cervix for a cervical discharge and in November had a hemorrhoidectomy. On July 7, 1954, Dr. Ragen performed an operation on plaintiff for repair of the cystocele (a herniation or collapse of the urinary bladder--a stretching of the ligaments or deterioration of the material which holds the bladder in an upright position). This operation was performed by entering the vaginal opening and making an inverted 'T' shaped incision through the mucosa of the cervix on the anterior portion, separating the mucosa, and realigning or drawing them together so as to shorten and make a stronger covering. Following this operation plaintiff had some bleeding and was taken back to surgery. The bleeding was controlled by a product known as oxycel (a synthetic or plastic used to stop bleeding--a cloth-like substance which is placed in the would to absorb the blood and is left to absorb itself.) In this connection the doctor testified that he used oxycel in the operation.

On January 3, 1955, plaintiff was hospitalized with a diagnosis of cervical stenosis and pyometrisis. She had pelvic pain and pain in the lower abdomen and urinary tract infection. She was treated and sent home and on January 24, 1955, she was again hospitalized with a diagnosis of right ovarian cyst. A cyst was removed by Dr. Ragen on January 25, 1955. It was the size of a small orange and was found to contain a piece of foreign matter approximately one and one-half inches long, one-half inch wide and one-eighth inch thick. Dr. Monroe, who assisted Dr. Ragen in the operation, testified that he thought it was a piece of either glove, rubber, or a piece of rubber tube; that he was not positive that it was rubber.

Dr. Russell Pickard, a pathologist, reported that in the cyst there was a 'sponge, that is a piece of gauze in which there was a thin yellow brown material, it was squarish shape, it was about, as I recollect, about a half inch and it looked like rubber and I looked at it microscopically and it had sort of a network that had been pressed through it. It had a fabric-like appearance under the microscope and assuming it was rubber, I burned a piece of it to see if it would burn with that foul sulphur...