Rural Educational Ass'n v. Bush

• Decision Date: 30 November 1956
• Parties: RURAL EDUCATIONAL ASSOCIATION, Plaintiff-in-Error-Defendant, v. Stewart C. BUSH, Defendant-in-Error-Plaintiff. 42 Tenn.App. 34, 298 S.W.2d 761
• Court: Tennessee Court of Appeals

Page 761

298 S.W.2d 761

RURAL EDUCATIONAL ASSOCIATION, Plaintiff-in-Error-Defendant, v. Stewart C. BUSH, Defendant-in-Error-Plaintiff.

42 Tenn.App. 34, 298 S.W.2d 761

Court of Appeals of Tennessee, Middle Section.

Nov. 30, 1956.

Certiorari Denied by Supreme Court Feb. 8, 1957.

[42 TENNAPP 37] George H. Armistead, Jr., Chas. L. Cornelius, Jr., Nashville, for plaintiff in error.

Dan E. McGugin, Watkins, McGugin & Stewart, Nashville, for defendant in error.

HICKERSON, Judge.

Stewart C. Bush brought this suit against Rural Educational Association to recover damages for injuries which he received as a result of an operation performed upon him in Madison Sanitarium and Hospital, which is privately owned and operated by defendant.

Specifically, plaintiff charged that:

'A large surgical sponge or other large object was negligently and carelessly left in plaintiff's intestines which was wholly unknown to him as he was unconscious at the time under the effects of an anesthetic. As a result, plaintiff was sewed up and dismissed from the hospital with this sponge or object in his intestines.'

Defendant pleaded the general issue of not guilty.

Judgment was entered in favor of plaintiff, upon a jury verdict, in the sum of $15,000.

Four questions are made by the assignments:

1. Did the Court err in refusing to direct a verdict for defendant?

2. Did the Court err, 'in sustaining an objection to evidence offered by the defendants for the purpose of showing that the sum of $10,000.00 was paid to the plaintiff on behalf of the surgeon who had operated on the plaintiff for a covenant not to sue for damages arising [42 TENNAPP 38] out of the alleged injury the plaintiff was complaining of and for which he was seeking damages'?

3. Did the Court err in the charge to the jury?

4. Was the verdict excessive?

(1) In Poole v. First National Bank of Smyrna, 29 Tenn.App. 327, 196 S.W.2d 563, 567, this Court said:

'The rule for determining a motion for a directed verdict has often been stated in numerous cases. It has been fashioned to preserve the constitutional right of trial by jury and to administer the common law separation of function by which the jury try the fact and the judge the law. It requires the trial judge, and the appellate court on review, to look to all the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion, to allow all reasonable inferences from it in his favor, to discard all countervailing evidence; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. Wildman Mfg. Co. v. Davenport Hosiery Mills, supra [147 Tenn. 551, 249 S.W. 984]; Brenizer v. Nashville C. & St. L. Ry., 156 Tenn. 479, 3 S.W.2d 1053, 8 S.W.2d 1099; Provident Life & Acc. Ins. Co. v. Prieto, 169 Tenn. 124, 83 S.W.2d 251; Osborn et al. v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510; Patillo v. Gambill et ux., 22 Tenn.App. 485, 492, 124 S.W.2d 272, 276; Tennessee Cent. Ry. Co. v. McCowan, Tenn.App. 188 S.W.2d 931.'

The jury returned a general verdict. The effect of such verdict in the case on trial was to decide each [42 TENNAPP 39] issue in favor of plaintiff if there was material evidence to support such verdict. Code Section 10343; Summers v. Bond-Chadwell Co., 24 Tenn.App. 357, 145 S.W.2d 7; Stewart v. Parker, 33 Tenn.App. 316, 232 S.W.2d 57.

Applying these rules, there is material evidence in the record to support a finding by the jury of the following facts: Defendant operated a hospital in Davidson County, Tennessee, known as Madison Sanitarium and Hospital. Plaintiff was admitted to this hospital on May 11, 1954, for examination and treatment. He had no personal private physician to attend him at the hospital; so, he was referred by the hospital to Dr. J. C. Gant, who was Medical Director of the Hospital. Plaintiff was a 'pay patient' at the hospital. He had insurance which paid a substantial part of his bill at the Hospital and the doctors' bill incident to his illness.

Several physicians were on the 'resident staff' of the Hospital. These physicians had offices in the hospital buildings and rendered the necessary medical and surgical services to the patients who had no private physician to wait on them in the Hospital. Among these members of the resident staff were Dr. J. C. Gant, the Medical Director; Dr. G. E. Horsley, who was an eye, ear, and nose specialist; and Dr. James D. Schuler, a surgeon. Plaintiff did not know any of these physicians when he entered the Hospital.

Plaintiff was first examined by Dr. Gant, who then referred him to Dr. Horsley. After the examination by Dr. Horsley, Dr. Gant turned plaintiff over to Dr. Schuler. Plaintiff did not select these doctors as his private physicians. To the contrary, he submitted himself[42 TENNAPP 40] to the Hospital and its staff for hospitalization, examination, diagnosis and treatment; and, as stated, he was sent by Dr. Gant from one doctor to another on the Hospital resident staff until the examination was completed.

Dr. Gant then told plaintiff the result of the examinations. These doctors found plaintiff had mastoiditis, and an operation was recommended. Plaintiff accepted the recommendation, and Dr. Horsley operated on him for mastoid trouble.

After plaintiff had recovered from the mastoid operation, Dr. Gant and Dr. Schuler recommended that he have an abdominal operation. He agreed to that and Dr. Schuler performed the operation.

These operations took place in the surgery rooms of defendant. All facilities and all personnel were furnished by defendant. The nurse and anesthetist were among the attendants. They were the servants and employees of defendant and were paid by defendant for their services in connection with these operations.

The nurse of defendant prepared the surgery rooms for the operations. In connection with the abdominal operation on plaintiff, which was performed by Dr. Schuler, the nurse of defendant placed in the surgery room certain sponges which were necessary for use during that operation. The approved and commonly used type of sponge for such operations has a long tape fastened to the sponge at one end of the tape with a safety ring at the other end of the tape. This tape and ring hang outside the incision as a safety measure or precaution against the possibility of leaving the sponge in the abdomen of the patient after the operation has [42 TENNAPP 41] been completed. When this type of tape is used, it is impossible to close the incision and leave the sponge in the body for the tape and ring would be hanging on the outside of the incision. The nurse of defendant who prepared for the operation did not provide this type of sponge. She merely provided and used sponges with no safety tape and no ring attached.

It is the custom and practice that the operating surgeon is in complete charge of the surgery room and all personnel connected with the operation. In matters of professional skill or decision, it is the duty of the personnel (nurses, the anesthetists, or any others who may assist) to obey explicitly the orders of the surgeon. There are many matters, however, which do not involve professional skill or decision on the part of the surgeon. It is the custom and practice for the nurses to count the sponges which are taken into the surgery room. After the operation, and before the incision is closed, the nurses again count the sponges which have not been used, then count the sponges which have been used, and see if they total the number originally brought into the surgery room. As a double check, two nurses are furnished: the scrub nurse, or surgery nurse; and the 'circulating' nurse. On the sponge count the scrub nurse first makes the count, then the circulating nurse counts the sponges to see if the two nurses agree in their count.

The surgeon relies upon the nurses for this sponge count. Before closing the incision, the surgeon inquires of the nurses about the sponge count. If they assure him the sponge count is correct, he closes the incision.

In the case on trial, Dr. Schuler made such inquiry about the sponges and was informed by the scrub nurse [42 TENNAPP 42] that the sponges were accounted for. Whereupon, the surgeon closed the incision. The nurse, however, made a mistake. No circulating nurse had been provided for this operation, although a circulating nurse was required and commonly used. The sponges had not been correctly counted. One large, long sponge was left in the abdomen of plaintiff and lodged in one of his intestines.

The abdominal operation was performed on November 18, 1954. Plaintiff did not recover from this operation as expected. He finally became desperately sick and was returned to the hospital on February 25, 1955, and Dr. Schuler again did an abdominal operation on plaintiff. This last operation disclosed a gangrenous intestine caused by this sponge in it. The surgeon had to remove about three feet of the intestine. After cutting the intestine open, he found the sponge in it. Dr. Schuler stated:

'Q. And then what did you do with the specimen?

'A. Well, I cut the bowel open to see what it looked like inside and to my utter confusion and embarrassment this sponge was found.

'Q. What type of sponge was it, Dr. Schuler?

'A. Well, the sponge is what we call a lap sponge, one that was undoubtedly used as a lap pack for the intestine in the first operation.'

With commendable frankness, Dr. Schuler told the family about the mistake which had been made, and made no charge for this last operation. We might add, also, that the abdominal operation performed by Dr. Schuler was an excellent and skillful piece of professional work by him, except leaving the sponge in the body.

[42 TENNAPP 43] That this state of facts constitutes negligence cannot be doubted. The question before this Court is whether defendant can be held liable for the negligence; or,...