Robinson v. St. John's Medical Center, Joplin

• Decision Date: 07 March 1974
• Docket Number: Nos. 9446 and 9449,s. 9446 and 9449
• Citation: 508 S.W.2d 7
• Parties: Ned Owen ROBINSON and Fern Robinson, Plaintiffs-Respondents, v. ST. JOHN'S MEDICAL CENTER, JOPLIN, Missouri, it being an Amended Pro Forma Decree Corporation, Defendant-Appellant, and Bart Wooldridge, Defendant. Ned Owen ROBINSON and Fern Robinson, Plaintiffs-Appellants, v. ST. JOHN'S MEDICAL CENTER, JOPLIN, Missouri, it being an Amended Pro Forma Decree Corporation, Defendant, and Bart Wooldridge, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 7

508 S.W.2d 7

Ned Owen ROBINSON and Fern Robinson, Plaintiffs-Respondents, v. ST. JOHN'S MEDICAL CENTER, JOPLIN, Missouri, it being an

Amended Pro Forma Decree Corporation, Defendant-Appellant,

and

Bart Wooldridge, Defendant.

Ned Owen ROBINSON and Fern Robinson, Plaintiffs-Appellants, v. ST. JOHN'S MEDICAL CENTER, JOPLIN, Missouri, it being an

Amended Pro Forma Decree Corporation, Defendant,

and

Bart Wooldridge, Defendant-Respondent.

Nos. 9446 and 9449.

Missouri Court of Appeals, Springfield District.

March 7, 1974 Motion for Rehearing and for Transfer to Supreme Court Denied March 25, 1974 Plaintiffs-Respondents Rehearing Denied March 25, 1974 Defendant-Appellant Application to Transfer Denied May 13, 1974.

Richard M. Webster and L. Thomas Elliston, Myers, Webster, Perry & Elliston, Webb City, for plaintiffs-respondents, appellants.

L. R. Buehner, Buehner & Buehner, Joplin, for defendant-appellant.

William H. Sanders, Larry L. McMullen, David C. Trowbridge, Kansas City, Henry Warten, Warten & Fisher, Joplin, for defendant-respondent; Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, of counsel.

PER CURIAM:

Defendant Wooldridge performed gall bladder surgery on Ned Robinson at defendant St. John's Medical Center in Joplin. A subsequent operation revealed a laparotomy (lap) sponge had been left in Robinson during the gall bladder surgery due to an inaccurate sponge count. Robinson et uxor sued the doctor and the hospital under the doctrine of respondeat superior on the theory that Mary Ritzman, the surgeon's instrument nurse, and Beverly Gray, an employee of the medical center, had been negligent in making the closing sponge count. A Jasper County jury exonerated the surgeon and returned verdicts which awarded Robinson $50,000 and his wife $5,000 in damages against the medical center. Plaintiffs and the hospital filed separate appeals which have been consolidated here for determination.

The evidence was to the effect that an operating room is divided into two fields--one sterile and the other non-sterile. A sterile filed includes the operating room and its immediate environs. Only persons who 'are scrubbed' or sterile are permitted within the sterile field and they must remain therein until the operation is completed. In addition to Dr. Wooldridge, the sterile personnel present at the gall bladder excision with whom we are concerned were: Mary Ritzman, employed by the doctor and acting as his instrument nurse; Rose Ella Sidenstricker and Vivian Morey Jones, both employees of the hospital who were serving as suture or scrub nurses and assisting in the surgery in various ways. Beverly Gray, employed by the hospital, served as the non-sterile or 'circulating nurse;' she was not permitted inside the sterile field and hand, inter alia, the duty of keeping the Operating Room Record which included a record of the sponge counts made at the beginning of the surgery and at the closing of the peritoneum or inner lining of the abdominal cavity by the surgeon.

Lap sponges at St. John's were delivered to the operating room in packets of six and placed in the sterile field. Two scrub (sterile) nurses, namely, Mary Ritzman (the doctor's employee) and Rose Sidenstricker (the hospital's employee), made the beginning count. This count was recorded on the Operating Room Record. As lap sponges were used and discarded during surgery they were removed from the sterile field into the domain of circulating nurse Beverly Gray (the hospital's employee) in the non-sterile field.

As stated in plaintiffs' appeal brief, 'No one participating (in the gall bladder surgery) had any independent recollection with regard to the occurrences in the operating room,' and this was particularly true regarding the sponge count on closure. Consequently, the testimony was replete with recountings of what usually or generally transpired. Briefly, it seems that when the surgeon is ready to close he requests but does not participate in the sponge count and relies on what he is told regarding the correctness vel non of the count. A scrub nurse counts the sponges remaining in the sterile field and the circulating nurse counts the sponges in the non-sterile field, 'with each witnessing the other's count as far as possible limited to their inability to leave their own field and invade the field of the other.' The scrub nurse reports her count to the circulating nurse who records the sterile field count on the Operating Room Record; the circulating nurse counts the non-sterile field sponges, records this count on the same record, calculates the total of the two counts and announces whether the closing count is correct or incorrect. Actual recording of the two counts on the Operating Room Record is not necessarily done simultaneously with each report as this depends on what the circulating nurse is doing at the time. Also, it does not always happen that the circulating nurse announces 'out loud' the number she has counted or the total she has calculated--she may simply state that the count is correct or incorrect. ¹ In either event, so Beverly Gray the circulating nurse testified, 'I announce that the sponge count is correct,' and, if so, 'it's taken as being correct.' Insofar as it pertains to the beginning and closing counts at the gall bladder operation, the Operating Room Record written by the circulating nurse, stated:

In their role as appellants, plaintiffs' first point in their brief is that the trial court erred in entering judgment for Dr. Wooldridge 'for the reason that the verdict rendered by the jury was against the weight of the evidence.' It is trite to repeat again that simply declaring the verdict is against the weight of the evidence preserves nothing for appellate review because appellate courts, unlike trial courts, do not weigh the evidence in jury tried cases. State ex rel. St. Hy. Com'n v. Twin Lakes Golf Cl., Inc., 470 S.W.2d 313, 315(3) (Mo.1971). However, a complimentary look at the argument portion of the brief on this point indicates plaintiffs' position is predicated upon the conclusions that plaintiffs 'made a prima facie case of negligence against Defendant Wooldridge' and that the sponge counting 'was the joint responsibility of nurse Gray and nurse Ritzman.' As to the first conclusion, the making of a prima facie case does not per se entitle plaintiffs to a favorable verdict or to a new trial at the hands of an appellate court. The jury, in the first instance, was the sole judge of the credibility of the witnesses and the weight to be given to their testimony; the jury had leave to believe none, part, or all of the testimony of any witness (Haymes v. Swan, 413 S.W.2d 319, 327(18) (Mo.App.1967)) and even could disbelieve the testimony of witnesses which went unimpeached and uncontradicted. Mayer v. Orf, 404 S.W.2d 733, 735(3, 4) (Mo.1966). In the second instance, since an appellate court may not weigh the evidence, it cannot award a new trial simply because a prima facie case was made. If by the second conclusion, supra, plaintiffs are suggesting Dr. Wooldridge could have responsibility because of some vicarious liability imputed to his employee through a joint adventure or enterprise undertaken with the circulating nurse in counting sponges on closure, it is enough to observe that such a theory was neither pleaded nor submitted by plaintiffs. Theories which might have been pleaded and submitted but which were not, are deemed abandoned. Murphy v. Deksnis, 476 S.W.2d 150, 153(6) (Mo.App.1972). Plaintiffs are to be judged on the issues they plead and submit (Green v. Sutton, 452 S.W.2d 200, 206(2) (Mo.1970)) and in this case these did not embrace joint adventure or enterprise.

Preserving allegation of instruction error for appellate review requires that specific objections to the instructions be made either before submission, or partly before submission and partly in the motion for new trial, or wholly within the new trial motion. Rules 70.02, 79.01 and 79.03 V.A.M.R.; Bremer v. Mohr, 478 S.W.2d 14, 19 (Mo.App.1972). Nonetheless, if instruction errors that are urged on appeal differ from and were not included in the specific objections made to and overtly determined by the court nisi, they may not be reviewed by an appellate court for 'no allegations of error shall be considered in any civil appeal from a jury tried case except such as have been presented to or expressly decided by the trial court.' Rule 84.13(a). Plaintiffs, in the second and last point relied on in their brief, complain of Dr. Wooldridge's instructions 7 and 9 'for the reason that (plaintiffs' two) verdict directing instruction(s) were on the same theory of recovery and defendant was only entitled to one converse instruction.' Quite foreign to this point, plaintiffs' only trial objections to instructions 7 and 9 were in their motion for a new trial wherein their identical objections were that 'the Court erred in giving Instruction No. 7 (No. 9), a verdict directing instruction, since it was admitted by all the parties that Nurse Gray was agent of Defendant St. John's Hospital; that Nurse Ritzman was agent of Defendant Wooldridge; that both were acting within the scope of their employment, and that they had an equal obligation in the sponge count; that said instruction permitted the jury to make a finding not supported by the evidence.' We are uncertain as to the meaning of these objections; instructions 7 and 9 (MAI 33.02(4) modified), respectively, conversed plaintiff Ned Robinson's verdict directing instruction 6 and the plaintiff wife's verdict directing instruction 8 against Dr. Wooldridge, and neither instruction 7 nor 9 were verdict directors as stated in the motion for new trial. But regardless of our inability to understand the meaning of plaintiffs' objections made in their new trial motion, the objections presented to the trial court did not encompass the objection now urged on appeal. Ergo, the second point in plainti...