Powell v. Mullins

• Decision Date: 23 August 1985
• Parties: Christine POWELL v. Julius MULLINS, M.D. 84-173.
• Court: Alabama Supreme Court

Page 1119

479 So.2d 1119

Christine POWELL v. Julius MULLINS, M.D.

84-173.

Supreme Court of Alabama.

Aug. 23, 1985.

Rehearing Denied Nov. 1, 1985.

M.A. Marsal of Seale, Marsal & Seale and Irvin J. Langford of Howell, Johnston & Langford, Mobile, for appellant.

W. Boyd Reeves and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.

BEATTY, Justice.

This is an appeal by the plaintiff, Christine Powell, from a judgment in favor of the defendant, Julius Mullins, M.D., based upon a directed verdict entered at the close of the plaintiff's evidence in a medical malpractice case. It is undisputed that the defendant left an 18-inch-square surgical lap sponge inside the plaintiff when closing the abdominal incision necessary for the cesarean delivery of the plaintiff's third child. The trial court, believing the case to be controlled by Gilbert v. Campbell, 440 So.2d 1048 (Ala.1983), granted the defendant's motion for directed verdict because the plaintiff failed to "put on medical testimony to say that the standard of care accepted in that particular field was not followed." We reverse and remand.

The relevant facts of the case are as follows:

The plaintiff entered the University of South Alabama Medical Center for delivery of her third child. Plaintiff had received her pre-natal care through the Medical Center and, initially, her doctors there felt she would be able to deliver her baby vaginally. However, because plaintiff is a diabetic on insulin, the baby (weighing 9 1/2 lbs.) had grown too large to deliver vaginally, and the decision was made to deliver the baby by cesarean section. The defendant, Dr. Mullins, was the chief resident in obstetrics at the Medical Center and the attending physician in charge of performing the cesarean section on the plaintiff. Dr. Mullins was assisted by two other doctors. Also present in the operating room were several people from the anesthesiology department, several nurses, a respiratory therapist, and a pediatrician. Plaintiff was given a general anesthetic despite the fact that her obesity and heavy smoking posed a greater risk in using general anesthesia. These factors, as well as plaintiff's low blood count and profuse bleeding during surgery, established her to be a high-risk patient overall.

While performing the cesarean surgical procedure, which lasted over two hours, the defendant used two rolled up 18-inch-square lap sponges, placing them inside plaintiff's abdomen on either side of the uterus. Twenty-eight other sponges were used during the procedure to soak up blood, but only the two 18-inch-square lap sponges were actually placed inside the plaintiff's abdomen. Despite the defendant's own search of the operative field in preparing to close the incision, as well as two reports given by a nurse that the sponge count was correct, one of the 18-inch-square lap sponges was left inside the plaintiff.

Approximately four days after her surgery, the plaintiff began to complain of pain and swelling on one side. X-rays were taken, revealing the presence of the sponge in plaintiff's abdomen. Five days after the cesarean section, plaintiff underwent a second surgical procedure to remove that sponge.

The only issue presented by this case is whether, on these facts, in order to defeat a motion for directed verdict, plaintiff was required by law to put on expert medical testimony to establish that the defendant's treatment fell below the professional standard of care. We hold that she was not required to do so under these facts.

I.

The general rule in Alabama is that in medical malpractice cases expert medical testimony is required to establish what is and what is not proper medical treatment and procedure. An exception to this general rule exists where an understanding of the doctor's alleged lack of due care or skill requires only common knowledge or experience. This rule and the exception were explained by this Court in Parrish v. Spink, 284 Ala. 263, 266-267, 224 So.2d 621, 623-624 (1969):

"Ordinarily, in a malpractice case, proof as to what is or is not proper practice, treatment, and procedure, can be established only by expert medical evidence. Snow v. Allen, 227 Ala. 615, 151 So. 468. In such a case lack of expert testimony results in lack of proof of negligence and such proof is essential to establish a plaintiff's case.

"An exception to the above rule is applied to those cases where a physician's or surgeon's want of skill or lack of care is so apparent as to be within the comprehension of laymen and to require only common knowledge and experience to understand it, then expert evidence is not required. See 141 A.L.R. pps. 12, 13, for citation of innumerable authorities.

"Those cases which have applied the above rule concern the leaving of objects in a patient's body, such as forceps, gauze, sponges, needles, etc., (see 162 A.L.R. 1299), or injuries to the body remote from the area of the operation, such as an injury to an arm and shoulder during an operation for appendicitis, (Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258), or an injury to an eye during the same type of operation. (Meadows v. Patterson, 21 Tenn.App. 283, 109 S.W.2d 417).

"In such situations it has been held by many courts that the facts themselves established negligence without the need for expert medical testimony, and the case should go to the jury either under the doctrine of res ipsa loquitur, or on the basis that upon the plaintiff showing such facts, the burden of going forward with a defense is then upon the defendant.

"In a number of our cases this court has held that under the facts of the particular case then being considered, the doctrine of res ipsa loquitur was not applicable. Dabney v. Briggs, 219 Ala. 127, 121 So. 394; McKinnon v. Polk, 219 Ala. 167, 121 So. 539; Carraway v. Graham, 218 Ala. 453, 118 So. 807; Ingram v. Harris, 244 Ala. 246, 13 So.2d 48; Moore v. Smith, 215 Ala. 592, 111 So. 918; Watterson v. Conwell, 258 Ala. 180, 61 So.2d 690.

"These statements made under the particular facts of the case then being considered [have] led counsel for appellee to assert that 'res ipsa loquitur does not apply in malpractice cases.' This statement we consider is not borne out upon analysis of our cases.

"But be that as it may, in Sellers v. Noah, 209 Ala. 103, 95 So. 167, this court wrote:

" 'Where a surgeon performing an operation leaves in the body of his subject, closing the wound, a foreign substance that causes injury or damage to the subject, the burden of proof passes to the impleaded surgeon to show that he exercised the stated reasonable and ordinary care, skill, and diligence in respect of the operation upon his subject, including the process of closing the wound. Davis v. Kerr, 239 Pa. 351, 86 Atl. 1007, 46 L.R.A., N.S., 611; 21 R.C.L. p. 407, § 49.'

"Thus, whether a plaintiff in a malpractice suit be relieved of presenting expert medical testimony after producing evidence demonstrating lack of due care apparent as a matter of common knowledge, the result is the same whether it be reached by application of res ipsa loquitur, or by casting the burden upon the physician of going forward with his defense. We see no need to falter over phraseology."

This general rule, as well as the exceptions thereto, were reiterated by this Court in the recent case of Holt v. Godsil, 447 So.2d 191, 192-193 (Ala.1984):

"To establish a physician's negligence, the plaintiff must ordinarily proffer expert medical testimony as to what is or is not the proper practice, treatment, or procedure. See Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969).

"The following situations have been recognized as exceptions to the general rule: (1) where a foreign instrumentality is found in the plaintiff's body following surgery, Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923); (2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment, Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969); (3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice, Zills v. Brown, 382 So.2d 528 (Ala.1980); and (4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor's allegedly negligent conduct, Lamont v. Brookwood Health Services, Inc., 446 So.2d 1018 (Ala.1983).

See also Tant v. Women's Clinic, 382 So.2d 1120, 1121 (Ala.1980), where this Court stated:

"Only in the most extreme cases will the jury be permitted to find professional misconduct, resulting in injury within the doctor/patient relationship, absent expert testimony as to the standard of care which the doctor is alleged to have breached. The rule is summarized at 61 Am.Jur.2d, Physicians, Surgeons, etc., § 202 (1972), p. 337, that expert testimony is usually 'an indispensable prerequisite to the establishment of liability in obstetrical malpractice cases.' See, also, Thomas v. Berrios, 348 So.2d 905 (Fla.App.1977)."

Thus, this case falls squarely under the exception applied in Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923), where the defendant doctor performed an appendectomy on the plaintiff, leaving a needle or part of a needle inside the plaintiff. The defendant, however, argues to this Court (and persuaded the trial court) that the present case is controlled by Gilbert v. Campbell, 440 So.2d 1048 (Ala.1983), in which this Court stated:

"Gilbert urges us to apply the doctrine of res ipsa loquitur to this case. He argues that he has established a prima facie case of negligence against Dr. Campbell under the doctrine of res ipsa loquitur. We have never held that this doctrine may be used in a medical malpractice action to prove negligence. The rule in Alabama is that expert medical testimony is required to establish what is and what is not proper medical treatment and procedure. See, Moses v. Gaba, 435 So.2d 58 ...