Samuels v. Willis

• Decision Date: 21 April 1909
• Parties: Samuels v. Willis
• Court: Kentucky Court of Appeals

133 Ky. 459

Samuels v. Willis

Court of Appeals of Kentucky.

April 21, 1909.

Appeal from Barren Circuit Court.

GEORGE W. STONE, Special Judge.

Judgment for plaintiff, defendant appeals. — Affirmed.

SIMS, DUBOSE & RHODES and PORTER & SANDIDGE for appellant.

BAIRD & RICHARDSON for appellee.

OPINION OF THE COURT BY JUDGE O'REAR. — Affirming.

Appellant is a surgeon of many years' experience in performing abdominal operations. His office and residence at Louisville. He was called to Glasgow Junction to operate on appellee for ovaritis. Appellee had been very sick for some months, and, the local doctors advising the operation and recommending appellant, she decided to have him do the work. He sent down a trained nurse and followed next day with a medical student as assistant. Several doctors of the neighborhood came in to witness the operation. After the patient had been put under the influence of an anaesthetic, the abdomen was opened by a five or six inch incision, the intestines were pressed aside from the infected region, and in order that they might be held in place, and so as not to interfere with the operator's work, a number of surgical sponges were inserted in the abdominal cavity, forming a kind of cofferdam about the organ to be operated upon. These sponges are described as gauze cloths about 14 inches by 6 inches, stitched together. After the operation the sponges were intended to be removed and the cut in the abdomen drawn together by stitches, leaving a small opening in which was inserted strips of the gauze for drainage purposes. The operation was thought to have been a success, but the patient did not respond by the anticipated recovery. Instead, after a few days, she grew worse. Finally, and in about 30 days after the operation, it was discovered through a part of the original opening made in the abdomen that some foreign substance was lying near the surface, which, on being removed, was discovered to be one of the surgical sponges used at the operation. So it is claimed by appellee. It was incrustated in and saturated with foul-smelling pus. After its removal the patient improved in health, but there was left a sinus, which it is claimed has developed into a fecal fistula. Appellee brought this suit against appellant, charging malpractice, in that he negligently left or suffered to be left in her person after the operation the surgical sponge, which irritated the intestines, causing them to fester and ulcerate, creating the fistula, which emitted fecal matter and noxious gases to the serious impairment of her health, and causing her sickness and humiliation, mental and physical suffering, for which she sought damages. The trial resulted in a verdict and judgment for $3,500 for the plaintiff.

There are several rulings of the trial court presented on this appeal by the defendant as errors, for which he asks a reversal of the judgment. In the petition it was charged, inter alia: "That the defendant negligently and carelessly caused and permitted to be left in the plaintiff's body instruments, material and dressing used in said operation, and negligently and carelessly left said instruments, material and dressing to remain in her body for several weeks, injuring and perforating her intestines and bowels, and destroying same; that he negligently and carelessly permitted her intestines and bowels to perforate; and that her intestines and bowels are still perforated, and permanently injured," and so forth. In an amended petition filed before the trial, it is said: "She states: That, wherever the word `perforated' occurs in her petition, she asks leave of the court to strike the same. She states that the defendant when making and superintending said operation negligently and carelessly cut her intestines, and negligently left the same open, and he negligently and carelessly left the sponge described in her original petition in her bowels for more than 30 days, and the same festered and gathered pus in her bowels, and ulcerated her intestines and left an opening therein, and the gas and food and contents of her stomach and bowels worked out through said opening in her intestines, made as afrosesaid, passing out at the opening in her abdomen, which was made to perform said operation, thus forming an artificial opening in her abdomen; that the same has existed and continued, and now exists by reason of the negligence or careless acts of the defendant, causing her great bodily and mental anguish, humiliation, and suffering, and permanently injuring her as stated in her original petition."

There was no evidence that appellant perforated or cut the plaintiff's...