Russell v. Young

• Decision Date: 07 June 1924
• Docket Number: 25,092
• Citation: 226 P. 752,116 Kan. 268
• Parties: J. R. RUSSELL, Appellant, v. J. R. NEWMAN and C. F. YOUNG, Appellees
• Court: Kansas Supreme Court

226 P. 752

116 Kan. 268

J. R. RUSSELL, Appellant, v. J. R. NEWMAN and C. F. YOUNG, Appellees

No. 25,092

Supreme Court of Kansas

June 7, 1924

Decided January, 1924

Appeal from Linn district court; EDWARD C. GATES, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

MALPRACTICE--Negligence--Gauze Sponge Left Within Incision--Verdict Nominal Damages--New Trial Awarded. In an action for malpractice, where it is established that surgeons inadvertently left a gauze sponge within the incision after the removal of a kidney, a verdict in favor of the plaintiff awarding him only nominal damages is held to require a new trial, notwithstanding medical testimony that no injury resulted to the patient.

John A Hall, of Pleasanton, and John C. Cannon, of Fort Scott, for the appellant.

James G. Sheppard, and Charles F. Newman, both of Fort Scott, for the appellees.

Mason, J. Mason J., Harvey, J. dissenting.

OPINION

MASON, J.:

J. R. Russell sued J. R. Newman and C. F. Young, physicians and surgeons, for malpractice, alleging that after removing his right kidney on May 30, 1919, they had negligently left within the incision a surgical gauze sponge four or five inches long and about an inch and a half in diameter, which remained there without discovery until August 7, 1919. A verdict was rendered in favor of the plaintiff, awarding him, however, only one dollar. He appeals, relying upon the proposition that inasmuch as the verdict necessarily amounted to a finding of negligence, the failure to allow him substantial damages showed passion and prejudice on the part of the jury and was contrary to the evidence.

Where a wrong is found to have been committed which obviously resulted in substantial injury, a verdict for merely nominal damages is not allowed to stand. This rule has been applied in an action for assault and battery (Sundgren v. Stevens, 86 Kan. 154, 119 P. 322), and in one for the alienation of affections (Bracken v. Champlin, 114 Kan. 882, 220 P. 1027).

Here the jury obviously concluded that the sponge was inadvertently and negligently left within the incision, but that no actual injury resulted from it. One of the defendants testified that he did not intend that any sponge should remain in the incision after June 4; that he would not have left one in if he had known it was there; that all ought to have been taken out then; that if he had known it was there he would certainly have taken it out. There were conflicts in the evidence. The plaintiff testified that when he left the hospital on June 18 he was told he was ready to go home; that neither of the defendants said a word to him about returning, and that he was given instructions for his own treatment. According to the defendants' evidence, when he left on June 18 he was told to return within a week or ten days for examination, and promised that he would, but failed to do so. This dispute must be regarded as having been settled in favor of the defendants, so that any consequences of the incision going without examination after June 18 may be attributed to his own failure to follow instructions. The plaintiff's evidence affirmed and the defendants' denied that when the sponge was removed it had a foul odor. The plaintiff described his condition and feelings before and after the operation and before and after the removal of the sponge, telling of various pains and symptoms which he attributed to its presence. He introduced medical evidence tending to support his contention in that regard, but against this the defendants produced the testimony of themselves and of other doctors that the leaving of the sponge within the incision was not likely to cause any injurious results, and that whatever unfavorable conditions afterwards manifested themselves were not attributable to its presence--on the contrary, that it was of actual benefit in promoting the healing process and hastening a recovery from the effects of the operation. Extracts from this testimony follow:

"We did not open the abdominal cavity. . . . We left an opening in the incision big enough to stick in four or five homostats and four pieces of gauze. . . . This gauze remaining in this incision, I am sure, did not injure the patient. . . . The leaving of the sponge in the incision did not damage but assisted in healing the wound. . . . We left the wound open for the purpose of drainage. . . . The wound begins to heal at the bottom, but if you don't put something in there it won't, so we put something in there for drainage. Sometimes we use gauze and sometimes rubber tubes, and sometimes rubber strips, but almost always gauze. As long as the wound is open the gauze will not injure the patient . It always will [work out] if your wound is open. . . . The keeping of this wound open after the operation tended to drain the poison out of the wound. The system couldn't and wouldn't absorb the poison. It was not necessary that the sponge be anchored to the outside. I have packed and repacked sponges in wounds for a longer period than sixty-nine days. If the sponge is sterilized it don't hurt anything. You couldn't expect the patient to get well in a couple of months. If he gets well in a year he does very well. In my opinion, knowing how long it takes kidney wounds to heal up, I think this really hastened the healing. It didn't...