Tiller v. Von Pohle

• Decision Date: 20 April 1951
• Docket Number: No. 5302,5302
• Citation: 230 P.2d 213,72 Ariz. 11
• Parties: TILLER et al. v. VON POHLE.
• Court: Arizona Supreme Court

Page 213

230 P.2d 213

72 Ariz. 11

TILLER et al. v. VON POHLE.

No. 5302.

Supreme Court of Arizona.

April 20, 1951.

Rehearing Denied May 15, 1951.

Charlie W. Clark, Marshall W. Haislip, of Phoenix, for appellants.

Scott and Green, Shimmel, Hill & Hill, all of Phoenix, for appellee.

DE CONCINI, Justice.

Thelma Tiller, plaintiff-appellant, brought suit against Dr. Ernest E. Von Pohle, defendant-appellee, for injuries to her person which she allegedly suffered by reason of defendant's negligence in the performance of a surgical operation upon her.

The facts as appear in the record show that on or about December 26, 1946, plaintiff was in ill health and consulted defendant, a licensed practicing physician and surgeon, who diagnosed plaintiff's condition as being extra-uterine pregnancy and who advised her that an immediate abdominal operation was necessary. On that day plaintiff submitted to such operation which was performed by defendant, assisted by a Dr. R. W. Rosenquist. Plaintiff alleges that immediately following said operation she developed severe pains in her abdominal region at about the same place where defendant had made the incision, and for two years thereafter suffered extreme and excruciating pain in that part of her body.

Following this operation plaintiff, on several occasions, consulted defendant and complained to him of her painful condition; on these occasions defendant assured plaintiff that the operation had been a complete success and that her suffering was caused by common gas pains. At other times, following the operation, defendant diagnosed plaintiff's malady as anemia and tilted uterus. Various treatment was rendered plaintiff by defendant but the alleged pain and suffering persisted. From the testimony of various witnesses it appears that following this operation plaintiff lost about thirty pounds, was unable to eat solid foods, was unable to sleep, vomited frequently, became extremely nervous, and was so physically incapacitated that it was impossible for her to fulfill her duties as a wife and mother.

On March 18, 1949, plaintiff underwent a second abdominal operation performed by Dr. Rosenquist who was assisted by defendant Von Pohle. During the performance of this second operation there was, according to defendant, removed from plaintiff's large bowel, where it joins the small intestine, a cloth sack approximately ten inches wide by sixteen or eighteen inches long. The proof shows that these two operations were the only ones ever performed on plaintiff's body.

At the close of plaintiff's evidence defendant moved for a directed verdict on the ground that plaintiff offered no evidence tending to prove negligence on the part of the defendant, which motion was granted. From the judgment entered thereon and from the denial of plaintiff's motion for a new trial and for arrest of judgment, plaintiff appeals.

Plaintiff assigns that the trial court erred in granting this motion for a directed verdict. In support of this assignment of error plaintiff contends that where a patient submits herself to the care and custody of a surgeon for the purpose of having an abdominal operation performed while the patient is under anesthetic and unconscious; and where later, upon a following operation a cloth sack of considerable size is found in the patient's body in the immediate area wherein such operation was performed; and where the only operations ever performed on the patient were the first in which the surgeon's negligence is alleged, and the second one wherein the cloth sack is discovered; the patient is entitled to the aid of the doctrine of res ipsa loquitur in a malpractice action based on the alleged negligence of the surgeon who performed the operation. This court considers plaintiff's proposition to be correct.

In the case of Eisenbeiss v. Payne, 42 Ariz. 262, 25 P.2d 162, 164, this court pointed out the conditions necessary to employ the rule of evidence known as res ipsa loquitur. In quoting 45 C.J. 1193, Sec. 768, the court said: '* * * In such cases, 'Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.' * * * In other words, when such circumstances are shown to exist, the inference arises that defendant is guilty of negligence, and, in the absence of explanation by defendant, justifies a recovery in damages for such wrong. * * *' See, also, 65 C.J.S., Negligence, § 220(2).

Mr....