Monk v. Doctors Hospital

• Decision Date: 10 October 1968
• Docket Number: No. 20945.,20945.
• Citation: 403 F.2d 580
• Parties: Ellen K. MONK, Appellant, v. DOCTORS HOSPITAL and Henry L. Darner, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

403 F.2d 580 (1968)

Ellen K. MONK, Appellant, v. DOCTORS HOSPITAL and Henry L. Darner, Appellees.

No. 20945.

United States Court of Appeals District of Columbia Circuit.

Argued December 6, 1967.

Decided October 10, 1968.

Mr. Carl L. Taylor, Washington, D. C., with whom Mr. Frank F. Roberson, Washington, D. C., was on the brief, for appellant.

Mr. Thomas Penfield Jackson, Washington, D. C., with whom Mr. John L. Laskey, Washington, D. C., was on the brief, for appellee, Doctors Hospital.

Mr. James A. Welch, Washington, D. C., with whom Mr. John L. Ridge, Jr., Washington, D. C., was on the brief, for appellee, Darner.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and BURGER, Circuit Judge.

PER CURIAM:

This is an appeal from directed verdicts for Appellees in actions against Doctors Hospital, Washington, D. C. and Appellee Darner for damages for burns sustained by Appellant. In her complaint Appellant alleged that the burns resulted from the negligent operation of a "Bovie" electrosurgical machine used to remove moles. At the conclusion of the Appellant's case, the trial judge directed verdicts for both defendants. We reverse as to both.

Appellant was in the hospital for abdominal surgery and before the surgery she asked Dr. Darner if he would also remove three moles from her right arm and one from her right leg. He instructed a hospital nurse to prepare a Bovie machine, but he was not present while she set up the machine. The nurse testified that the patient had already lost consciousness, and was strapped to the table, when she placed the contact plate of the Bovie machine under the patient's right calf. Appellant claimed burns resulted from contact with the plate and that the procedure was negligently performed.

In support of her claim as to improper placement of the plate, Appellant introduced instruction manuals issued by the manufacturer of the machine and available to the hospital stating that when the patient was on his or her back the plate should be placed under the buttocks or under the shoulder blades. Appellees argue that the admission of these manuals was error.¹ They contend that the manuals cannot assist in establishing negligence because they do not establish the relevant standard of care under established local standards. The manuals described the reason for applying the contact plate to large areas of flesh as being the prevention of skin burns from the electricity passing between the patient's body and the plate. Although it is correct that the manuals do not purport to articulate the standards prevailing in this area, they are plainly directed at correct use of the machine and practitioners using such a machine cannot ignore instructions of the maker without some reason. Hence the manuals had probative value and were properly admitted. Moreover, since both Dr. Darner and the nurse testified that they were familiar with these manuals, the manuals would demonstrate that the doctor and the nurse were on notice as to the risks of improper operation of the Bovie machine. Appellees argue that, even if admissible, the manuals were not evidence of negligence because the manuals themselves may be read to permit the placement elsewhere than the shoulders and buttocks.² Of course, the manuals are not conclusive as to the proper standard of care, but the question is whether they were relevant and admissible for guiding the jury. The inferences to be drawn from conflicting language in the manual is a question for the jury. We hold only that the manuals could be considered by the jury. See Salgo v. LeLand Stanford, Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (1957); Julien v. Barker, 75 Idaho 413, 272 P.2d 718 (1954); Sanzari v. Rosenfeld, 34 N.J. 128, 167 A.2d 625 (1961).

Appellant also introduced evidence on the theory of the operation of a Bovie machine. Dr. Darner, one of the Appellees, testified to the operation of the Bovie machine in "lay" terms. He stated that "when you deliver the current into a patient's body if you deliver it over a wide surface, and the entire surface is in contact with the electrode, there will be no burning. * * *" When Dr. Darner was asked how he was familiar with the theory of an electrosurgical machine, he stated that it was developed by one of his former medical chiefs and that he, Dr. Darner, had written a treatise on the subject.

Appellant claims that this expert testimony coupled with evidence in the manuals reduced the question of negligence for the jury to a question of the propriety of the procedure adopted and that it was not necessary thereafter to present expert testimony as to the medical custom of the area. See Washington Hospital Center v. Butler, 127 U.S.App. D.C. 379, 384 F.2d 331 (1967). Appellees contend that there must be expert testimony that the relevant standard of care in the area was not met by these practices. Appellees rely on the fact that the only evidence on this point was the uncontroverted testimony of both the nurse and Dr. Darner that it was accepted medical practice to place the contact plate on the calf. However, "with the technical aspects of the controversy * * * elucidated, the jury's ultimate determination could be fashioned on the basis of what in similar circumstances reasonably prudent men would have done." Id. at 385, 384 F.2d at 337.

The question was not merely what medical standards would guide a practitioner's use of the machine under prevailing local practice but what was prudent in the circumstances in light of whatever special knowledge the jury found was possessed by those performing the procedure. Evidence on both the medical custom in the area and the operation of the Bovie machine were relevant to a resolution of this question. But expert testimony is not always an evidentiary prerequisite for establishing the standard of care in the locality. It is received to help lay jurors understand technical matters beyond their competence, and in the confines of this case...