Tice v. Hall

• Decision Date: 03 April 1984
• Docket Number: No. 410A83,410A83
• Citation: 313 S.E.2d 565,310 N.C. 589
• Court: North Carolina Supreme Court
• Parties: Josie Phillips TICE v. William HALL.

Page 565

313 S.E.2d 565

310 N.C. 589

Josie Phillips TICE v. William HALL.

No. 410A83.

Supreme Court of North Carolina.

April 3, 1984.

Clark, Shaw, Clark & Bartelt by Jerome B. Clark, Jr., Fayetteville, and Teague, Campbell, Conely & Dennis by John W. Campbell, Lumberton, for plaintiff-appellee.

Anderson, Broadfoot, Anderson, Johnson & Anderson by Hal W. Broadfoot, Fayetteville, for defendant-appellant.

MARTIN, Justice.

The determinative issue on this appeal is whether Josie Phillips Tice is entitled to rely upon the doctrine of res ipsa loquitur to take her case to the jury on the question of the negligence of defendant Hall. We hold that the plaintiff is so entitled. The defendant's motion for a directed verdict was erroneously granted.

"Uniformly, in this and other courts, res ipsa loquitur has been applied to instances where foreign bodies, such as sponges, towels, needles, glass, etc., are introduced into the patient's body during surgical operations and left there." Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E.2d 242, 245 (1941); Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285 (1932) (and cases cited therein); Hyder v. Weilbaecher, 54 N.C.App. 287, 283 S.E.2d 426 (1981), disc. rev. denied, 304 N.C. 727, 288 S.E.2d 804 (1982).

Despite testimony of defendant and his expert concerning the scrupulous sponge counting and recounting procedures employed by the surgical team in this and other cases and the reliance by surgeons on the sponge count provided by the nurses in assistance, the well-settled law in this jurisdiction is and has been that "a surgeon is under a duty to remove all harmful and unnecessary foreign objects at the completion of the operation. Thus the presence of a foreign object raises an inference of lack of due care." Hyder v. Weilbaecher, supra, 54 N.C.App. at 289, 283 S.E.2d at 428. When a surgeon relies upon nurses or other attendants for accuracy in the removal of sponges from the body of his patient, he does so at his peril. By defendant's own admission, the surgical sponge removed from the body of Mrs. Tice in November 1979 was left inside the surgical cavity during the September 1976 operation over which he presided as surgeon.

If the facts of the case justify, as here, the application of the doctrine of res ipsa loquitur, the nature of the occurrence and the inference to be drawn supply the requisite degree of proof to carry the case to the jury without direct proof of negligence. Young v. Anchor Co., 239 N.C. 288, 79 S.E.2d 785 (1954); Mitchell v. Saunders, supra, 219 N.C. 178, 13 S.E.2d 242. Equally well settled is the effect of the presumption thus established of defendant's negligence.

The decisions are contrary to the proposition that any explanation which the defendant may see fit to furnish of matters which are supposed to be peculiarly within his knowledge is sufficient to rebut the prima facie case which res ipsa loquitur has made, or to repel the presumption, or, rather, inferences, which the jury may draw from it. It is still a matter for the jury.

Mitchell v. Saunders, supra, 219 N.C. at 183, 13 S.E.2d at 246.

The defendant argues that the law of res ipsa loquitur as cited above has been superseded by the enactment of N.C.G.S. 90-21.12 which became effective 1 July 1976. The statute provides:

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

See Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (1955). Defendant interprets the above to be "the definitive law of medical malpractice in North Carolina" and therefore controlling in this case. Defendant further argues the incompatibility of the statute with the res ipsa doctrine in cases such as this:

Assume that the applicable standard requires a search prior to closing the surgical incision and sponge counts as well. Assume further that all of the evidence shows that the operating surgeon made a meticulous search and that all sponge counts were reported to him as correct. At that point he has complied fully with the applicable standard of care. However, under the ruling of the Court of Appeals he could still be held responsible under res ipsa loquitur if a sponge were left behind, contrary to the statute.

The defendant misapprehends the effect of the application of the...