Peterson v. Richards

• Decision Date: 10 November 1928
• Docket Number: 4610
• Citation: 73 Utah 59,272 P. 229
• Court: Utah Supreme Court
• Parties: PETERSON v. RICHARDS

272 P. 229

73 Utah 59

PETERSON v. RICHARDS

No. 4610

Supreme Court of Utah

November 10, 1928

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by Thelma B. Peterson against Doctor Ralph T. Richards. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Bagley Judd & Ray, of Salt Lake City, for appellant.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, for respondent.

STRAUP J. THURMAN, C. J., and CHERRY, HANSEN, and GIDEON, JJ., concur.

OPINION

STRAUP, J.

This is an action brought by the plaintiff and respondent against the defendant and appellant to recover damages for injuries sustained by her through the alleged negligence of the defendant. In her complaint it is alleged that the defendant, a physician and surgeon, was employed to perform and performed on her an abdominal operation at a hospital in Salt Lake City; that an anesthetic was administered to her rendering her unconscious and insensible; that while she was on the operating table and in such condition the defendant, in the course of the operation, performed, directed, and controlled by him, negligently operated or caused the operating table to be so manipulated and adjusted that her hand and fingers were negligently and carelessly permitted to fall or come in openings or breaks in the table caused by manipulations of it, and the table so manipulated and adjusted that her hand and fingers were caught therein, pinched, crushed, and permanently injured.

The defendant denied the alleged negligence and denied that the plaintiff sustained any injury whatever to her hand or fingers on the operating table or through its manipulation, or in the course of the operation, or in the operating room, or that the table could be or that it was so manipulated or adjusted that her hand or fingers could be or that they were caught in the table or injured; and averred that if the plaintiff's hand or fingers were injured while in the hospital, they were hurt or injured, not on or about the operating table or in the operating room, but in other parts of the hospital over which he had no direction or control.

The case was tried to a jury, who rendered a verdict in favor of the plaintiff in the sum of $ 8,000. This on defendant's motion for a new trial was reduced by the court to $ 5,000 and the motion overruled, provided the plaintiff remitted the excess, which she did. The defendant appeals. He assigns as error the overruling of his motion for a directed verdict on the ground of insufficiency of the evidence; in excluding, on plaintiff's objections, certain evidence offered by the defendant; in refusing to charge as requested by him; and in charging the jury in particulars excepted to by him.

That the plaintiff's fingers while she was in the hospital, and was under the influence of the anesthetic, were from some cause injured by having been pinched or crushed between metallic or other hard material of some kind, is not disputed. In such respect the evidence, without dispute, shows that when the plaintiff in her room in the hospital was being prepared for the operation and taken therefrom to the operating rooms several floors above, her hand and fingers were uninjured and in a normal condition, and that they were not injured on the way to the operating room and were not in an injured condition when she was placed on the operating table; that the operation took about 1 hour and 45 minutes, during which time the plaintiff was completely under the influence of the anesthetic; that after the operation was completed, and while she still was under the influence of the anesthetic, she was taken from the operating room to her room below and placed in bed, and that not anything occurred on the way to injure her fingers or by which her fingers or hand could have been injured; that about three-fourths of an hour after the operation and after she had been placed in bed and was coming out of the influence of the anesthetic, she exclaimed, "Oh, my poor hand," and complained of pain in her hand. Upon an examination made of it by the nurse and others present, it was found that her fingers had been freshly pinched and crushed. It is conceded by both parties that to hold the defendant liable it, among other things, was necessary to show that plaintiff's fingers were injured in the operating room and in the course of the operation, and if they were injured elsewhere in the hospital, either in taking the plaintiff to or from the operating room, or in her room after the operation, the defendant was not liable. It was the theory of the plaintiff, and it so was alleged in her complaint, that her fingers were injured by manipulations or adjustments of the operating table in the course of the operation and while she was completely under the influence of the anesthetic. Evidence was given to show that there was no instrumentality or object in the operating room by or through which her fingers could have been injured, except the operating table, and that not anything occurred in the operating room whereby plaintiff's fingers could have been injured, except by manipulations or adjustments of the table. There is no direct evidence to show that her hand or fingers were caught in the table or that they were injured by manipulations or adjustments of it. That is to say, no witness testified that he saw plaintiff's fingers caught in or about the table, or saw them pinched or injured by its manipulation or adjustment. All that rests upon inferences, and on admissions which the plaintiff and her husband testified were afterwards made by the defendant, but denied by him.

The record shows that the defendant is one of the most competent and skilled surgeons in the state and of much experience and practice. In the operation he was assisted by two other competent surgeons and by attending nurses, one of whom was in his employ and was skilled and experienced in administering anesthetics and who administered the anesthetic to the plaintiff. The operating room, including the operating table, was maintained and furnished by the hospital. The defendant had no direction or control over the wards or rooms or other parts of the hospital, nor of the nurses or attendants about the hospital. He, in common with other physicians and surgeons, was permitted to bring patients to the hospital and there operate on them and treat them. The plaintiff was taken to the hospital under such circumstances. She independently of the employment of the defendant was to pay and paid all hospital charges. The defendant was employed merely to do the operation. He had full charge and control of that, and gave all the directions and orders with respect thereto, including whatever manipulations or adjustments were made of the operating table. There were what is spoken of as two major abdominal operations to be performed, one on the uterus and another on other female organs of the plaintiff, requiring a large incision in the abdominal cavity and a lower midline incision. These were performed by the defendant himself assisted by the other surgeons. There were two minor operations to be performed, the removal of a mole on the inner thigh and a mole on the shoulder or upper arm of the plaintiff. These, under the direction of the defendant, were performed by the assistant surgeons. The major operations were first performed by the defendant and then the minor operations by his assistants. There is some dispute in the evidence as to whether the minor operations were or were not performed before the major operations were fully completed and the incisions sewn up. The plaintiff's husband, who was present at the operation, testified that while the defendant was sewing up the incisions, the two assistants removed the moles. But the defendant and the other surgeons testified that the moles were not removed until the incisions had been sewn up and the abdomen covered with bandages of antiseptic solutions. The operating table or which the operations were performed was one of late improvements installed by the hospital three or four weeks prior to the operation, but was one with which the defendant was familiar, as were also his assistants and the other attendants at the operation. The table was so constructed as to permit the center of the top of it, on which the plaintiff was lain, to be raised and lowered, to better facilitate, among others, the kind of major operations performed by the defendant, and in performing them the table was raised and lowered for such purpose. It, of course, is the contention of the plaintiff that in so raising and lowering the table, her fingers were caught and pinched and crushed. Her husband, who was present during the operation, did not testify that he saw her fingers caught in the table, or saw them hurt in such or in any manner, and testified he had no knowledge that her fingers had been injured, until after she had been removed from the operating room to her room below in the hospital and about three-fourths of an hour thereafter when she came out of the influence of the anesthetic and complained of pain in her fingers; and that upon an examination then made of them by the attending nurse and others it was discovered that plaintiff's fingers had been freshly pinched and crushed. He further testified that when the major operations were being performed, plaintiff's hands were held in straps fastened to the table; that the center of the top of the table was raised and manipulated while such operations were being performed, causing an opening or break in that part of the table; that while the table was in such position the defendant sewed up the incisions made by him, and while he was doing that he directed his assistants to remove the moles; that one of them did...