Rayburn v. Day

• Decision Date: 11 July 1928
• Citation: 268 P. 1002,126 Or. 135
• Parties: RAYBURN v. DAY.
• Court: Oregon Supreme Court

268 P. 1002

126 Or. 135

RAYBURN v. DAY.

Supreme Court of Oregon

July 11, 1928

Department 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by Maude Rayburn against Floyd M. Day. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action of malpractice brought against a surgeon. July 14 1925, the defendant performed upon the plaintiff an abdominal surgical operation. It is agreed that he left in the plaintiff's abdominal section a surgical sponge. August 17, 1925, he made another incision into the same portion of her body and then discovered the sponge. The complaint alleges that this sponge was the source of the ill health that necessitated the second incision. The answer controverts this charge, and alleges that the badly infected condition of the plaintiff's pelvis, which required the first operation, caused the formation of a secondary abscess, and that the second operation was performed to remove this aftermath condition. The answer avers that the presence of the surgical sponge was not the cause of this subsequent operation; that the sponge was sterile and caused no ill effects. From a verdict and judgment in favor of the defendant, the plaintiff has prosecuted this appeal.

H. E Slattery, of Eugene, for appellant.

Charles A. Hardy, of Eugene, for respondent.

ROSSMAN J. (after stating the facts as above).

The assignments of error are based upon the admission and exclusion of evidence, and instructions to the jury. In order to facilitate the disposition of these assignments of error it will be helpful if we bear in mind the following undisputed facts: The plaintiff, a woman 43 years of age consulted one Dr. R. H. Fields, a physician engaged in his practice in the city of Eugene. About July 11th, Dr. Fields called in consultation the defendant. The two physicians concluded that the plaintiff had an infection of the pelvic region of the body. They advised her that a surgical operation was necessary. This was performed July 14th by the defendant, aided by Dr. Fields; a competent nurse administered the anæsthetic and a graduate, experienced nurse assisted the defendant. Two other nurses were present, one of whom supplied the surgical sponges and other appliances from the hospital stores, and the other performed the menial chores. As a witness, the defendant described the condition of the plaintiff's pelvic region as follows:

"I found all the pelvic organs all grown together in a mass, and the intestines, both the large and the small intestines, were all grown--all attached to this mass. And the first thing was to dissect free the intestines, get them away from this mass. She had what we call double pus tubes; both the Fallopian tubes were abscessed and the right ovary was entirely destroyed. The right ovary and tube was a mass of abscesses that as I said would hold a quart of pus, just filled the whole pelvis, and the uterus itself was full of fibroid tumors, probably fifteen or twenty of them, and I don't know how many more in the uterus, and of course in dissecting them and the intestines from this abscess and freeing them from the broad ligament--in this process the abscess was ruptured. You see the intestines and the other organs form a part of the wall of the abscess, and the abscess forms inside of that, and just for instance, when you dissect off the intestines from that, you usually open into the abscess, and that is what happened in her case, and this pus was mopped out, sponged out, by the use of sponges, and, in an operation of that sort, we usually use two kinds of sponges, two sizes of sponges. We have a large lap sponge, which we call lap sponges, sixteen or eighteen inches long and perhaps eight inches wide that are packed into the abdomen to hold the intestines away, and then the smaller sponges--we have an instrument we call a sponge stick or forceps; it is a long forceps with which we can grasp the sponge and put it down in the bottom of the cavity and sponge out the moisture, blood, or pus, or whatever may be in there--and altogether I suppose there were around, I expect, eight dozen sponges used. There were two small sponges, these sponges about eight inches long and five or six inches wide, and composed of four or five thicknesses of gauze. There were two of these small sponges packed in the place in the abdomen, the rest of the small sponges were used on the sponge sticks or sponge forceps. After freeing the tubes and the uterus and the ovaries, this pus cavity was all swabbed out and cleaned out, and then we removed both pus tubes and also the uterus, the womb--the womb, as I stated, contained multiple fibroids, probably fifteen or twenty fibroid tumors were scattered all through the substance of the uterus and all of these--all of this work took considerable time and more or less shock. It is a big operation and we always work as fast as we can to save time; still at that it took a matter of two hours or more, I think, to complete this operation. And finally the organs were all removed, the abscess wiped out--sponged out--and removed, and we started--the sponges, the large sponges and the small sponges, were taken out, and we started to close the abdomen, and at this time it is always customary for them to make a sponge count."

At this point one of the nurses suggested that she believed one of the sponges was missing. What followed after this remark was stated by the defendant in the following language:

"We always make a mental note when they put a big sponge in, or two big sponges or three big sponges, * * * I always keep them in my mind and when they are taken out, * * * and we were all three confident there was not a sponge left in the abdomen, or we did not put any sponges in there. We had counted out all the sponges we had put in, and we had only used two small sponges in the abdomen. All three of us, Miss Turner, Dr. Fields, and myself, were all confident this sponge had not been used, but notwithstanding I opened the wound again and put my hand into the abdomen and felt around and made a hurried examination, but did not find any sponge, could not feel any sponge or anything abnormal and made the remark that we would have to hurry up and get this patient off the table and resuscitate her, and so I went on and closed the wound, excepting that we put in drainage. * * * Well, on account of the condition of the patient and the length of time that she had been undergoing this operation, the amount of work there was connected with the operation, the patient had been getting in a--in bad shape, and it was time that she was taken off, the anæsthetic stopped, and resuscitation begun.

"Q. After she had been on the table two hours and subjected to this heavy operation, what was your best judgment, whether there could be a sponge there or not, as to whether or not you ought to carry the operation further with regard-- A. Well, it was absolutely essential that we should not carry on any further--if there had been a sponge left in there--if I had known there was a sponge left in there, I would have left the sponge at that time, if I could not have found it conveniently; I would have left the sponge there temporarily and removed the sponge later.

"Q. Even if you had known it was there? A. Even if I had known there was a sponge in there; but we all connected with the operation were confident in our own minds there was not any sponge left in there. * * * She had undergone a heavy operation, when you remove one ovary and both Fallopian tubes and a large abscess and the womb complete in a case like that, and being a couple of hours under the anæsthetic, it is time to get that patient out of there, and this patient especially. She was in bad shape. She had stood just about all that she could stand, and it was time to take her out, and it is up to me. It is my business to say whether I shall stop this operation this minute, or carry it on half an hour longer or ten minutes longer, and I acted on what I thought was my best judgment in her case, and my judgment told me to stop that operation right then and close up the wound and stop the anæsthetic, and put her to bed and resuscitate her."

The testimony of Dr. Fields and the assisting nurse was to similar effect. Dr. Fields added the observation that the defendant applied himself diligently and skillfully to his task. He and the nurse testified that all three used these sponges to mop up the pus released when the large abscess broke. In the following excerpt from his testimony, Dr. Field expressed what he said and did when the suggestion was made that all of the sponges had not been removed:

"I said there was not a sponge in the abdomen. Of course, naturally when some one would express a doubt or say there is a sponge short, the important question is whether that sponge is somewhere else or in the patient. I said that we could not have left a sponge in the patient; everything that had been put in there had been removed.

"Q. You made that as a positive assertion? A. Yes, sir."

The witness added that the defendant had closed the inner lining of the adbomen, but that he loosened the sutures and inserted his hand into the incision, and made a hurried search to ascertain whether a sponge remained in the abdomen, but finding none, said that it was necessary to resuscitate the plaintiff as quickly as possible; that he (the witness) concurred in this conclusion. All agree that the operation had continued for at least two hours, and that it was a major one, which subjected the patient to a severe shock. The defendant contended that, whenever an infected condition of the pelvic region similar to that of the plaintiff is found, a secondary operation is always to be expected, and sometimes a third and fourth are...