Nixdorf v. Hicken
| Decision Date | 27 May 1980 |
| Docket Number | No. 16151,16151 |
| Citation | 612 P.2d 348 |
| Parties | Elsa H. NIXDORF, Plaintiff and Appellant, v. N. Frederick HICKEN and A. James McAllister, Defendants and Respondents. |
| Court | Utah Supreme Court |
Edward M. Garrett, Salt Lake City, for plaintiff and appellant.
John H. Snow, Salt Lake City, for defendants and respondents.
The plaintiff appeals the district court's granting of a directed verdict in favor of the defendants. Following the preservation of the plaintiff's case the defendants moved pursuant to Rule 50 for a directed verdict. The court granted the motion and entered its judgment thereon. We reverse and remand the action for a new trial. All statutory references are to Utah Code Annotated, 1953, as amended.
For a period of approximately ten years, the plaintiff, Elsa H. Nixdorf, suffered from a cystocele and rectocele. 1 In June 1964 she contacted the defendant, Dr. N. Frederick Hicken, concerning the alleviation of these problems. 2 Although Dr. Hicken initially counseled the plaintiff on the necessity of a hysterectomy, during the subsequent operation which he performed on June 5, 1964, he elected instead to merely repair the cystocele and rectocele and amputate a portion of the plaintiff's cervix.
The repair of the cystocele was completed without incident. However, during the repair of the rectocele one of the curved cutting needles used to suture the torn diaphragm became disengaged from the needleholder. Although the doctor realized the needle remained in the operating site, his attempts to locate it by palpating the suspect area were unsuccessful and the operation was completed without recovery of the lost needle.
Following the operation, the plaintiff remained under the care of Dr. Hicken until his retirement on July 1, 1970, when his partner, Dr. A. James McAllister, assumed the plaintiff as his patient. 3 Notwithstanding the plaintiff's repeated complaints of pain in the pelvic-abdominal area, Dr. Hicken and Dr. McAllister never informed her of the presence of the needle. In fact, the plaintiff had no knowledge of the presence of the needle until 1976 when Dr. Robert Maddock, who she consulted because of lower abdominal pain, revealed its presence to her. 4
At trial the plaintiff averred the defendant Hicken was negligent in the performance of the 1964 operation and because of his negligence, she has incurred certain damages, e. g., pain and suffering and related medical expenses. Plaintiff also averred the defendants acted negligently in not informing her of the presence of the needle.
At the conclusion of the plaintiff's case, the defendants moved pursuant to Rule 50, Utah Rules of Civil Procedure, for a directed verdict on the grounds the evidence presented by the plaintiff was insufficient as a matter of law to create a jury question on the defendants' negligence. The trial judge granted this motion on the basis of the plaintiff's failure to introduce expert testimony to establish the applicable standards of care.
In malpractice actions generally the physician is held to the standard of skill employed by his contemporaries in the same or similar communities. Therefore, before the plaintiff can prevail in a medical malpractice action, he must establish both the standard of care required of the defendant as a practicing physician in the community and the defendant's failure to employ that standard.
In the majority of medical malpractice cases the plaintiff must introduce expert testimony to establish this standard of care. Expert testimony is required because the nature of the profession removes the particularities of its practice from the knowledge and understanding of the average citizen.
However, this Court has recognized certain exceptions to the general rule requiring expert testimony. 5 Specifically, expert testimony is unnecessary to establish the standard of care owed the plaintiff where the propriety of the treatment received is within the common knowledge and experience of the layman. The loss of a surgical instrument or other paraphernalia, in the operating site, exemplifies this type of treatment. We explained in Fredrickson v. Maw : 6
Whether a surgical operation was unskillfully or skillfully performed is a scientific question. If, however, a surgeon should lose the instrument with which he operates in the incision . . ., it would seem as a matter of common sense that scientific opinion could throw little light on the subject.
The loss of the surgical cutting needle by Hicken falls squarely within the perimeters of this exception to the general rule. The guidance provided by expert testimony is unnecessary in this situation and, therefore, expert testimony should not have been required to establish the professional standard of care under the facts of the present case. 7
Concomitant with the establishment of the community standard is the plaintiff's proof that the defendant failed to exercise the level of skill this standard requires.
When the appropriate evidentiary basis is presented a plaintiff may employ the doctrine of res ipsa loquitur to carry this burden. 8 This doctrine establishes an inference of negligence from the circumstances incident to the operation. 9 It is a procedural rather than substantive rule of law which carries the plaintiff past a motion for nonsuit where the circumstantial evidence introduced by the plaintiff is sufficient to support the application of the doctrine and its inference of negligence. 10
We delineated the evidentiary foundation which the plaintiff must establish before employing the doctrine of res ipsa loquitur in Moore v. James 11 when we stated:
The rule . . . is applicable when: (1) The accident was of a kind which, in the ordinary course of events, would not have happened had the defendant used due care, (2) the instrument or thing causing the injury was at the time of the accident under the management and control of the defendant, and (3) the accident happened irrespective of any participation at the time by the plaintiff.
The establishment of this evidentiary basis presents a peculiar problem to a plaintiff in a medical malpractice case because of the necessity of showing what the usual outcome of a medical procedure would be when the required due care is employed. Generally, this requires the introduction of expert medical testimony to establish the fact the outcome is more likely the result of negligence than some other cause. This testimony would be necessary to provide the evidentiary basis from which the jury could conclude the result is more probably than not due to the negligence of the attending physician. 12
However, in certain situations, the medical procedure is so common or the outcome so affronts our notions of medical propriety that expert testimony is not required to establish what would occur in the ordinary course of events. In this type of situation the plaintiff can rely on the common knowledge and understanding of laymen to establish this element. 13
Therefore, when the instrumentality causing the injury is in the exclusive control of the defendant, and the plaintiff does not participate in the acts causing the injury, then negligence may be inferred from the injury alone if: (1) the cause of injury is so obviously negligent that negligence may be inferred as a matter of law; (2) people would know from common experience the result would not have happened without negligence; or (3) when a physician testifies bad results would not have occurred if proper care had been used. 14
While we will not say the act of the defendant in losing the needle from the needleholder was negligent as a matter of law, the bad result, i. e., the needle present in the body of the plaintiff, is such that people would know from common knowledge and experience it is more probably than not the result of negligence. 15 Therefore, in the present case, expert testimony was not required to establish this element of the doctrine of res ipsa loquitur.
The evidence presented at trial indicates the instrumentality which caused the bad result was in the exclusive control of the defendant at the time of the accident. Furthermore, the plaintiff was under a general anesthetic and could not participate or contribute to the act causing the injury. These facts when combined with the nature of the accident provide a sufficient evidentiary foundation for the application of the res ipsa loquitur doctrine in this case. The application of the doctrine provides a rebuttable inference of negligence which will carry the plaintiff's case past the motion for nonsuit. 16
Therefore, under the facts of this case, expert testimony was not required to establish the negligence of the defendant and the trial court erred in granting a directed verdict against the plaintiff because of the lack of that testimony. 17
The trial court also erred in not submitting to the jury the plaintiff's second cause of action, concerning the doctor's failure to disclose the presence of the needle. The relationship between a doctor and his patient creates a duty in the physician to disclose to his patient any material information concerning the patient's physical condition. This duty to inform stems from the fiduciary nature of the relationship 18 and the patient's right to determine what shall or shall not be done with his body. 19
The scope of the duty is defined by the materiality of the information in the decisional process of an ordinary individual. If a reasonable person in the position of the plaintiff would consider the information important in choosing a course of treatment then the information is material and disclosure required. 20
Once the duty to disclose certain information is established, then the physician's total breach of that duty, 21 as found in the present case, presents to the jury the question of what damages were proximately caused by the breach. Where the physician fails to disclose to his patient any information...
To continue reading
Request your trial
-
C.S. v. Nielson
...Kan. 215, 221-24, 699 P.2d 459, 465-67 (1985), and cases cited therein; James G., 332 S.E.2d at 876-77, and cases cited therein.24 612 P.2d 348 (Utah 1980).25 Id. at 355.26 See generally Cruz v. Montoya, 660 P.2d 723, 726 (Utah 1983); Judd v. Rowley's Cherry Hill Orchards, Inc., 611 P.2d 12......
-
Harnish v. Children's Hosp. Medical Center
...v. Sisters of St. Joseph of Peace, 270 Or. 129, 522 P.2d 208 (1974); Cornfeldt v. Tongen, 295 N.W.2d 638 (Minn.1980); Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980); Small v. Gifford Memorial Hosp., 133 Vt. 552, 349 A.2d 703 (1975); Klink v. G. D. Searle & Co., 26 Wash.App. 951, 614 P.2d 701 (......
-
Austin v. Litvak
...112 Colo. 363, 149 P.2d 372); surgical clamps (Mudd v. Dorr, 40 Colo.App. 74, 574 P.2d 97 (1977)); and injection needles (Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980); Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976)). A device which is intentionally placed in the body with the patie......
-
Graves v. N. E. Servs., Inc.
...not necessary, “the plaintiff can rely on the common knowledge and understanding of laymen to establish this element.” Nixdorf v. Hicken, 612 P.2d 348, 353 (Utah 1980). ¶ 40 Ultimately, then, the question of the need for expert testimony turns on the nature of the standard to be addressed b......
-
Defending the informed consent case: analyzing the materiality of the risk, causation, and expert testimony requirements.
...864 (Wash. App. 1974), aff'd, 530 P.2d 334, (Wash. 1975)). (9) Bronneke, 89 P.3d at 42-43. (10) Id. (11) See, e.g., Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980) (doctor lost needle inside a patient's body and failed to disclose it; medical expert testimony was unnecessary "because it is......