Rosson v. Hylton

• Decision Date: 25 May 1933
• Docket Number: 1789
• Citation: 45 Wyo. 540,22 P.2d 195
• Parties: ROSSON v. HYLTON, ET AL
• Court: Wyoming Supreme Court

22 P.2d 195

45 Wyo. 540

ROSSON v. HYLTON, ET AL

No. 1789

Supreme Court of Wyoming

May 25, 1933

ERROR to District Court, Niobrara County; CYRUS O. BROWN, Judge.

Action by Ernest Rosson against J. R. Hylton and G. W. Earle, for damages for alleged malpractice. Judgment was rendered for defendants on a directed verdict and the plaintiff brings error.

Affirmed.

For the plaintiff in error, there was a brief and oral argument by Mr. R. R. Rose, of Casper, Wyoming.

It is well settled that where there is a substantial controversy in the evidence, or the evidence is conflicting, or subject to different inferences, the trial court should not direct a verdict. 48 C. J. 1151-2; 33 C. J. 1183, 1186; 15 R. C. L 606-7; Phifer v. Baker, 34 Wyo. 473; U. P. R. R Co. v. Pacific Market Co., 27 Wyo. 501, 28 Wyo. 461; Loudon v. Scott, 12 A. L. R. 1487, 1490; Perkins v. Trueblood, (Cal.) 181 P. 642; Buttoms Admr. v Hawks, Ann. Cas. 1913 A, 1023, case note; Higgs Admr. v. M. St. P. & S. S. M. R. Co., 15 L. R. A. N. S. 1162; Ruth v. Johnson, 172 F. 192, C. C. A. 8th Circuit; Harris v. Fall, 27 L. R. A. N. S. 1; Spears v. McKinnon, 270 S.W. 524; Moore v. Ivey, 264 S.W. 283; McCoy v. Clegg, 36 Wyo. 473. Expert testimony is not necessary where the facts in issue are of such a character as to be capable of comprehension by laymen. Laughlin v. Christensen, 1 F. 215, C. C. A. 8th Circuit, 1914; Wharton v. Warner, 135 P. 235; Harris v. Fall, 27 L. R. A. N. S. 1174; Cornwell v. Sleicher, (Wash.) 205 P. 1059, 1060; Wynne v. Harvey, 165 P. 67; Miles v. Hoffman, (Wash.) 221 P. 316-7; Swanson v. Hood, (Wash.) 170 P. 135, 137-8; Hickerson v. Neely, (Ky.) 54 S.W. 842; Evans v. Roberts, (Ia.) 154 N.W. 923, 925, 926; Benson v. Dean, (N. Y.) 133 N.E. 125-6-7; Evans v. Munro, (R. I.) 83 A. 82; Markart v. Zeimer, (Calif.) 227 P. 683; Pettigrew v. Lewis, (Kan.) 26 P. 458; Lorenz v. Lerche, (Minn.) 196 N.W. 564. Under some authorities, the leaving of a sponge in a wound in the course of an operation is negligence per se. Wynne v. Harvey, 165 P. 67; Moore v. Ivey, 264 S.W. 283; McCormick v. Jones, (Wash.) 278 P. 181; Cornwell v. Sleicher, 205 P. 1059; Brown v. Shortlidge, (Calif.) 277 P. 134. In malpractice cases, where the thing causing the injury was under defendant's management, and ordinary care would have prevented the accident, particularly where a sponge or gauze is left in the body of the patient in the course of an operation, the rule of res ipsa loquitur applies. 48 C. J. 1143; Sellers v. Noah, 209 Ala. 103, 45 So. 167; Alt v. Hall, 119 Ohio St. 422, 164 N.E. 518; Davis v. Kerr, 239 Pa. 351, 86 A. 1007, 46 L. R. A. N. S. 611; Evans v. Munro, (R. I.) 83 A. 82; Shockley v. Tucker, 127 Iowa 456, 103 N.W. 360; Jones v. Tri State Telephone Co., 118 Minn. 217, 136 N.W. 741, 40 L. R. A. N. S. 485; Lewis v. Casenburg, 157 Tenn. 187, 7 S.W.2d 808; Bergeldt v. Hartzell, 1 F.2d 633; Evans v. Roberts, 172 Iowa 653, 153 N.W. 923; Brown v. Shortlidge, 277 P. 134; McCormick v. Jones, (Wash.) 278 P. 181. An operation begins when the incision is made and ends when the wound is sewed up, with all foreign substances removed. The responsibility of the operating surgeon continues throughout the operation. Akridge v. Noble, (Ga.) 41 S.E. 78; Barnett's Admr. v. Brand, (Ky.) 177 S.W. 461; Palmer v. Humiston, (Ohio) 45 L. R. A. N. S. 640; Gillette v. Tucker, (Oh.) 65 N.E. 865. The trial court erred in directing a verdict for defendants and the judgment should be reversed.

For plaintiff in error, J. R. Hylton, there was a brief by Durham & Bacheller and oral argument by Mr. Bacheller, of Casper, Wyoming.

There was no appearance for the defendant in error, G. W. Earle.

A presumption always exists that a physician and surgeon is not negligent in the treatment of a patient, or in the performance of an operation. For this reason, positive evidence of negligence is necessary. Wright v. Conway, (Wyo.) 241 P. 369, 242 P. 1108. There was no evidence to sustain the claim that the act complained of was the proximate cause of plaintiff's injury. Wright v. Conway, supra; Atherton v. Railway Assn., 221 S.W. 752; United States v. Ross, 23 L.Ed. 707, 92 U.S. 281; Cunard Co. v. Kelley, 126 F. 615; State v. Phillips, 92 N.W. 876; Moore v. Renick, 68 S.W. 939; Deschenes v. Concord R. R. Co., 46 A. 469; Dame v. Car Works, 52 A. 864; Cohn v. Saidel, 53 A. 805; Globe Accident Co. v. Gerisch, 45 N.E. 563, 54 A. S. R. 486. Negligence on the part of the physician is not presumed and must be affirmatively proved. 48 C. J. 1143. The doctrine of res ipsa loquitur contended for by plaintiff, applies in exceptional cases only, and is not the usual or general rule. Plaintiff's petition was not sustained by the evidence.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This proceeding in error was brought to obtain the review of a judgment of the District Court of Niobrara County rendered in an action wherein Ernest Rosson, the plaintiff in error here, was plaintiff, and J. R. Hylton and G. W. Earle, defendants in error, were defendants. There was a jury trial and, upon the conclusion of plaintiff's evidence, pursuant to defendants' separate motions made for that purpose, the court directed the jury to return a verdict in their favor. The judgment entered upon that verdict is the one concerning which complaint is now made. The controlling question to be determined, therefore, is whether the district court's action in the matter was correct.

Plaintiff's amended petition was based upon the alleged negligence of the defendants, who are each duly licensed physicians and surgeons under the laws of this state, in performing a surgical operation for hernia for which purpose they had been employed by him. He had been afflicted with this ailment for some two or three years prior to the operation which took place on October 5, 1926. The particular act of negligence charged was that the surgeons "left and permitted to remain inside plaintiff's abdomen a large piece of towel or surgical gauze" and "closed the incision made by them in the course of said operation leaving the said foreign substance inside plaintiff's abdomen where said foreign substance remained until about five days subsequent to said operation." The pleading then alleged that:

"That because of the presence in plaintiff's abdomen of said foreign substance infection began to develop soon after said operation and plaintiff became very ill and by reason of defendant's negligence as hereinbefore set out plaintiff was confined to the said hospital for a long period of time, and for a period of more than two years continued to be ill, weak, distressed, sick, lame and sore and unable to work or attend to his business."

Other than admitting their authority as regularly licensed physicians, the answers of the defendants were general denials.

The facts additional to those already mentioned as disclosed by the record and necessary to be considered in reaching a proper disposition of the question before us are briefly these: On October 5, 1926, aforesaid, Rosson entered the Lusk hospital for the purpose of having the operation performed. This institution was in charge of Mrs. Emma Marsh who was not a registered nurse but practiced as a trained nurse, having been in sole charge of the hospital for some eight years preceding the date last mentioned. The accommodations of the hospital were limited to ten patients. Mrs. Marsh looked after the patients herself with occasional help. She was called as a witness for the plaintiff and testified that, under Dr. Earle's direction, she prepared Rosson for the operation; that she had no floor nurse that day and that, after preparing the operating room and the patient, she was not present during the performance of the operation, did not observe anything, and knew nothing about it; that she made a daily record of the condition of the patient, treatments and medicines used, temperature, and other symptoms, this record being all the time available to the physician in attendance who, in this case, after the operation had been concluded, was Dr. Earle; that at the close of the operation, the wound was closed and dressed and the dressing remained on the wound until October 15, 1926, when she removed it in Dr. Earle's presence; that there was stitch pus and the dressing was soiled from its drainage. The daily record aforesaid received in evidence as regards Dr. Earle, shows among its notations for that day, "stitch abscess." Continuing Mrs. Marsh's testimony, she stated that when the bandages were removed the wound was still closed and nothing was protruding from the wound; that she saw no rubber tubing, gauze, or drainage of any kind in the wound when the dressing was removed on October 15; that on the following day, the stitches had sloughed and the wound was open; that the wound continued to have pus drainage, was irrigated and dressed on each of the subsequent days until October 22, 1926; that on that day, a retained sponge was removed.

Describing this occurrence, she testified that, Dr. Earle being present she observed something foreign within the opening of the wound which looked like cloth, not like a sponge, and she took a hemostat and pulled it out; that the removed soiled dressings were put on a paper and "then we removed this sponge and put it with these dressings and Dr. Earle went out of the room once and I followed him out"; that he said, "my God, don't say anything about it"; that, referring to the article removed, "we opened it up and it was a towel"; that it looked like a barber towel about 12 by 24, such a towel as she had in the hospital put up in packs for operations; that these towels are used in an operation to prepare a screen of them, bind and put it lengthwise and...