Smith v. Zeagler

• Decision Date: 25 September 1934
• Parties: SMITH et al. v. ZEAGLER.
• Court: Florida Supreme Court

157 So. 328

116 Fla. 628

SMITH et al. v. ZEAGLER.

Florida Supreme Court, Division A.

September 25, 1934

Rehearing Denied Nov. 14, 1934.

Error to Circuit Court, Putnam County; George William Jackson Judge.

Action by May Smith, joined by her husband, J. J. Smith, against G M. Zeagler. Judgment for defendant, and plaintiffs bring error.

Reversed for new trial.

COUNSEL J. V. Walton of Palatka, and Evan Evans, of Jacksonville, for plaintiffs in error.

Hilburn & Merryday and Thos. B. Dowda, all of Palatka, for defendant in error.

OPINION

DAVIS Chief Justice.

Plaintiff's declaration alleged in substance that on May 19, 1930, the defendant, Zeagler, a surgeon, was employed and undertook to perform a surgical operation upon the plaintiff, May Smith and that in the performance of said operation the defendant made an abdominal incision into the body of plaintiff; that the defendant carelessly and negligently failed and neglected to remove from said incision a sponge used in the performance of said operation, and carelessly and negligently sewed up said incision with the sponge inside plaintiff's body.

The only plea was not guilty. Upon a trial before the circuit judge without a jury, the judge found a verdict and rendered a judgment in favor of the defendant physician.

The facts shown by the evidence, briefly summarized, are as follows: May Smith, the plaintiff, had been pregnant about 8 or 9 months; on May 19, 1930, defendant performed a 'Caesarian' operation upon her at his hospital in Palatka, Fla.; the incision made in plaintiff's abdomen did not heal, but ulcerated and discharged pus until about four months later, when plaintiff procured one Dr. Jelks to operate on her in order to secure relief. The wound of the Caesarian operation was opened by Dr. Jelks and a sponge that had been left in the patient's body was found and removed, whereupon the patient's health greatly improved. The sponge was described as an object commonly used by surgeons for removing blood, and defendant himself testified that this sponge was of the type used for sponging before entering an incision and that it should never be allowed to get loose in the body. Defendant also testified that the presence of the sponge found in his patient's body was an accident, to account for which he was unable to give any satisfactory explanation, save that 'its presence was the result of some accident about which witness can only advance a theory.'

The authorities are legion to the effect that it is negligence per se for a surgeon to leave a sponge in an abdominal incision made in his patient in the course of his performance of a surgical operation upon such patient. Ruth v. Johnson (C. C. A.) 172 F. 191; Reeves v. Lutz, 179 Mo.App. 61, 162 S.W. 280; Rayburn v. Day, 126 Or. 135, 268 P. 1002, 59 A. L. R. 1062; Wynne v. Harvey, 96 Wash. 379, 165 P. 67; Harris v. Fall (C. C. A.) 177 F. 79, 27 L. R. A. (N. S.) 1174; Moore v. Ivey (Tex. Civ. App.) 264 S.W. 283; 21 R. C. L. 388.

The burden of showing due care is upon a surgeon who leaves a sponge inclosed in a wound after the performance of an operation, and he cannot relieve himself from liability unless the sponge was so concealed that reasonable care on his part would not have disclosed it, and conditions were such that, in his professional judgment, a special exploration for the sponge would have endangered the safety of the patient. Davis v. Kerr, 239 Pa. 351, 86 A. 1007, 46 L. R. A. (N. S.) 611.

Where a patient's condition is critical and the paramount requirement is to complete the operation in the shortest possible time, the failure to remove a sponge may be an accidental and excusable slip or inadvertence that is not actionable negligence, depending upon the circumstances of the case, the burden being on the physician to show to the satisfaction of the...