Null v. Stewart
| Decision Date | 21 December 1934 |
| Docket Number | 32226 |
| Citation | 78 S.W.2d 75 |
| Parties | NULL v. STEWART et al |
| Court | Missouri Supreme Court |
Woodward & Evans, of St. Louis, for appellants.
Kane & Kane and Robert L. Aronson, all of St. Louis, for respondent.
STURGIS, Commissioner.
This is a damage suit based on alleged malpractice of defendant Stewart, a physician and surgeon, in connection with performing a surgical operation on plaintiff at the hospital of the defendant Pittsburgh Plate Glass Company at Crystal City, Mo. It stands conceded that said company, which operated a large plant at Crystal City, also owned and operated a general hospital there for the treatment primarily of its employees, but it also admitted and treated other persons needing surgical operations. The defendant O. E. Stewart was the chief surgeon, and had general charge of this hospital. When persons not entitled to receive medical and surgical treatment by reason of being employees of defendant company received such treatment, the defendant charged and collected for such services, as it did in the present case. It is conceded, in short, that, if plaintiff is entitled to a judgment against Dr. Stewart, who performed the surgical operation here in question, a verdict was properly rendered against both him and the defendant company. Such verdict was for $ 10,000, and both defendants have appealed.
The only errors complained of on this appeal relate (1) to the giving of plaintiff's instruction No. 1, which outlined the facts which, if found for plaintiff, entitled her to a verdict, and (2) to the amount of the verdict and judgment. Taking up these assignments in their order, there are two objections made to plaintiff's instruction, the first being that such instruction violates the rule that instructions cannot enlarge and must never be broader than the issues made by the pleadings, 'no matter what range the evidence may take.' This calls for an examination of the pleadings, the facts proved, and the instructions. The pertinent facts are that plaintiff, a married woman aged fifty-four, become so ill on November 16 and 17, 1930, that she was advised by her family physician, Dr. Rutledge, that a surgical operation was necessary, and he and her husband made arrangements for her to go to the defendant company's hospital, which she did November 18, 1930. Defendant Dr Stewart, in charge of the hospital, examined her and agreed with Dr. Rutledge that plaintiff was suffering from gallstones, and very likely appendicitis, and that an immediate operation was necessary. This operation was performed by defendant Dr. Stewart, assisted by Dr. Rutledge and the hospital nurses. A considerable incision was made in the abdomen, and both the gall bladder and appendix, found to be badly diseased, were removed. In performing this operation, Dr. Stewart used gauze sponges or packs to cleanse the wound and remove and stop the flow of blood, and the question of negligence or malpractice arises from the fact that a piece of gauze was left in the abdominal cavity for nearly five months after the operation, when it worked to the surface and was removed by Dr. Stewart. The error in plaintiff's instruction is said to be that it permitted the jury to find for plaintiff on finding that Dr. Stewart was negligent in permitting the gauze to remain in plaintiff's abdominal cavity 'an unreasonable length of time' after the operation, and that no such allegation is in the petition, which, it is claimed, confined the negligence to 'leaving a foreign body in plaintiff's abdominal cavity while performing the operation.'
Of course, we agree that plaintiff cannot sue on one ground of negligence and recover on another. The reason for this rule is that defendant is entitled to know from the petition what allegations of negligence he is required to meet and to be given an opportunity to prepare to refute the same. In this case the petition, after alleging the status of the parties to each other and that defendants undertook to and performed the operation of removing her gall bladder and appendix, further alleged 'that in performing said operation defendants used numerous strips of gauze and that it was the duty of defendants, before closing the incision in plaintiff's abdomen, through which said gall bladder was removed, to also remove all of said strips of gauze, but that the defendants negligently, carelessly and unskillfully failed to remove one of said strips of gauze from the plaintiff's abdominal cavity and closed said incision, leaving said strip of gauze in said abdominal cavity; that said strip of gauze remained in said plaintiff's body from on or about the 18th day of November, 1930, until the 12th day of March, 1931, and that thereby the plaintiff became sick and ill; that while plaintiff was still in said hospital and in a dangerous condition from the infection caused by the negligence of the defendant, Dr. Stewart, in leaving said gauze in plaintiff's abdominal cavity, that the defendant, Dr. O. E. Stewart, examined her, but negligently and carelessly failed to discover the said piece of gauze; that later, on or about the 12th day of March, 1931, it was discovered that the wound had become opened and that part of the gauze protruded from her stomach or abdominal cavity and that it was necessary for the plaintiff to be rushed back to the hospital aforementioned and the abdomen to be reopened, an incision made, and the gauze taken out and the walls of her abdomen resewed; that as a result of said gauze being left and allowed to remain in said abdominal cavity and the infection and inflammation arising therefrom, she suffered excruciating pain of body and mental anguish for a period of many months,' etc.
The petition then closes with this allegation: 'Plaintiff further states that her said condition and said suffering were directly due to the carelessness and negligence of the defendants in performing the said operation for gall stones and in leaving said gauze in her abdominal cavity and in thereafter failing to discover in proper time that said gauze had been left therein.' (The italics are ours.)
Plaintiff's instruction complained of as enlarging the issues, omitting formal and unobjectionable parts, reads: 'And if you further find and believe from the evidence that the defendant Dr. O. E. Stewart in performing the operation on plaintiff for removal of gall bladder and gall stones did not exercise reasonable skill and care to remove the gauze left in plaintiff's abdominal cavity either at the time of performing said operation or within a reasonable length of time thereafter, and if you further find from the evidence that because the said Dr. O. E. Stewart did not exercise reasonable skill and care in failing to remove the gauze left in plaintiff's abdominal cavity, or in permitting the gauze to remain in plaintiff's abdominal cavity, an unreasonable length of time, the plaintiff suffered injury, then your verdict will be for the plaintiff and against the defendants.' (The italics here are defendants'.)
We readily agree that plaintiff's petition was drawn on the theory that the leaving of the sponge or gauze in plaintiff's abdomen after the operation was completed was accidental and due to carelessness and lack of attention on the part of Dr. Stewart and those assisting him, and that the case would be defended on the defendant's general denial that any gauze sponge was so left in the wound, or, if so, that the mistake was unavoidable or at least excusable. This belief on plaintiff's part was induced in part by the fact, testified to by plaintiff, that, when Dr. Stewart removed the gauze, he said to the nurses, 'Let's not let that happen again,' and requested plaintiff not to mention what had happened, as it would hurt him. It is likely that plaintiff was surprised when Dr. Stewart testified, as he did, that, when the gall bladder was being removed, he found it had adhered to the liver, and its removal caused a dangerous bleeding, and that to stop the hemorrhage he fastened this gauze sponge or part of it to the liver, and intentionally left it there after he sewed up the wound, except a small hole about as large as a finger left open for the purpose of drainage. He claimed that the conditions found made this both proper and necessary, and the jury might well have so found. If defendant Stewart's evidence is believed that he purposely left the gauze in the wound to stop a dangerous hemorrhage, and that this was necessary and proper treatment, this would refute the charge of negligence in the petition that it was defendant's duty to remove all the gauze before closing the incision. The jury was so instructed at defendant's instance.
The reading of the petition, however, will, we think, show that plaintiff did not base her cause of action solely on defendant's negligence or mistake in failing to remove the gauze from the abdominal cavity at the time the operation was completed or even within a day or so thereafter. The petition alleges that the operation was performed November 18, 1930, and that said strip of gauze remained in plaintiff's body until March 12, 1931, nearly five months, and 'thereby plaintiff became sick and ill'; that, while plaintiff was still in the hospital and in a dangerous condition from infection 'caused by leaving said gauze in plaintiff's abdominal cavity,' the defendant negligently failed to discover and remove said gauze.
The evidence on this point is that plaintiff remained in the hospital some three weeks after the operation, and was then allowed to go to her home to be under the care of Dr Rutledge. The incision did not heal, but kept discharging pus. Plaintiff suffered much, and a boil-like formation appeared at the wound, and so serious did her condition become that...
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