Van Hook v. Anderson

• Decision Date: 20 February 1992
• Docket Number: No. 13389-0-II,13389-0-II
• Citation: 824 P.2d 509,64 Wn.App. 353
• Court: Washington Court of Appeals
• Parties: Russell VAN HOOK, Respondent, v. Gerald ANDERSON, M.D., Petitioner.

Page 353

64 Wn.App. 353

824 P.2d 509

Russell VAN HOOK, Respondent, v. Gerald ANDERSON, M.D., Petitioner.

No. 13389-0-II.

Court of Appeals of Washington Division 2.

Feb. 20, 1992.

Mary H. Spillane, Williams Kastner & Gibbs, Seattle, for petitioner.

William A. Wilson, Edmonds, for respondent.

MORGAN, Acting Chief Judge.

In this medical negligence case, the trial court denied defendant Anderson's motion for summary judgment and granted plaintiff Van Hook's cross-motion as to liability only. Holding that defendant's motion should have been granted, we reverse and remand with directions to dismiss the complaint against defendant Anderson.

The defendant is a surgeon who performed a hernia operation on the plaintiff at Tacoma General Hospital. He was assisted by nurses employed by the hospital. During the operation, he used a number of gauze packs called sponges.

The hospital had previously adopted written procedures governing the use of sponges. These procedures required that two nurses count sponges before they were used, and that two nurses count sponges as they were removed from the patient. If the two counts matched, the nurses were to record that fact in the nursing record of the operation. If the two counts did not match, the nurses were to notify the surgeon, and the entire surgical team was then to look for the missing sponge.

Near the end of the operation, the nurses informed the defendant that the two counts matched. They also initialled their nursing report to reflect that fact. The operation was completed and the plaintiff was moved to the recovery room.

As the defendant was dictating his post-operative report, he became concerned because he could not recall removing one of the sponges. He checked the record of nursing care and found that it listed the sponge counts as correct. When he questioned the nurses personally, however, he was told that the sponge he was concerned about had been counted while it was still in the plaintiff's body.

An x-ray showed a sponge still in place on the plaintiff's right side. The defendant immediately informed the plaintiff, who was still in the recovery room. The plaintiff was returned to surgery and the sponge was removed.

After plaintiff sued, the parties made cross-motions for summary judgment. The defendant submitted the deposition of Dr. Sola, an expert selected by the plaintiff, who testified:

Q: Would you agree that a surgeon performing bilateral [sic] herniorrhaphies is operating within the standard of care, if he relies on the sponge count provided to him by the nurses as he proceeds to close the incisions?

A: Yes.

The defendant also submitted his own affidavit, in which he testified:

The standard of care requires the use of sponges and gauze packs as part of the surgical procedure to hold different parts of the anatomy out of the way in order for the surgeon to repair the patient's hernia. The standard of care requires the nurses to provide the sponges and the standard of care also requires the nurses to make sure the sponges handed back to them by the surgeon equal the number of sponges they provided the surgeon. This count must be made prior to the surgeon's closing the incision. The nurses are required to report to the surgeon as to whether the sponge count is correct prior to completing the incision closure.

Neither party offered any other testimony with regard to how the defendant should have dealt with the sponges and gauze packs used in the operation.

The trial court denied defendant's motion and granted plaintiff's as to liability only. Defendant applied for discretionary review, and his application was granted by a commissioner of this court. ¹

Neither party disputes the liability of the nurses, or of the hospital as their employer. We assume that the nurses had a duty to count the sponges before and after use, that their failure to do so was negligence as a matter of law, and that the hospital was liable under the doctrine of respondeat superior. ² See McCormick v. Jones, 152 Wash. 508, 510-11, 278 P. 181, 65 A.L.R. 1019 (1929).

We are asked to decide the liability of Dr. Anderson. With regard to him, we divide our analysis according to direct and vicarious liability.

Direct liability

One element of an action for medical negligence is the legal duty of care. Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 468, 656 P.2d 483 (1983). Under Washington law, that duty requires that a doctor use care equal to or exceeding that which would be exercised by a reasonably prudent doctor who has the degree of skill, care, and learning possessed by other members of the medical profession in this state. RCW 7.70.040; RCW 4.24.290; Harris v. Groth, 99 Wash.2d 438, 439, 444-47, 663 P.2d 113 (1983). The standard of care actually practiced by members of the profession is evidential but not conclusive with regard to what constitutes reasonable prudence. Harris v. Groth, 99 Wash.2d at 451, 663 P.2d 113. It follows that the legal duty of care and the medical standard of care are similar but not identical concepts.

Another element of an action for medical negligence is breach of the legal duty of care, also called negligence. Harbeson v. Parke-Davis, Inc., 98 Wash.2d at 468, 656 P.2d 483. A defendant moving for summary judgment on the element of negligence has the initial burden of showing a lack of evidence on that element. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989); LaPlante v. State, 85 Wash.2d 154, 158, 531 P.2d 299 (1975). Once that is accomplished, a plaintiff must produce evidence sufficient to support a reasonable inference that the defendant was negligent. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The evidence from both sides is viewed in the light most favorable to plaintiff, both in the trial court and on appeal. Hontz v. State, 105 Wash.2d 302, 311, 714 P.2d 1176 (1986); Wendle v. Farrow, 102 Wash.2d 380, 383, 686 P.2d 480 (1984).

Whether evidence is sufficient to support a reasonable inference that the defendant was negligent can be subdivided into two questions. First, is it sufficient to support an inference of negligence? Second, is it sufficient to support an inference that the negligence was the defendant's?

Inadvertently leaving a foreign object in the body of a patient is sufficient to support an inference of negligence. Conrad v. Lakewood Gen. Hosp., 67 Wash.2d 934, 937, 410 P.2d 785, 10 A.L.R.3d 1 (1966); McCormick v. Jones, 152 Wash. 508, 511, 278 P. 181, 65 A.L.R. 1019 (1929); Nelson v. Murphy, 42 Wash.2d 737, 739-40, 258 P.2d 472 (1953) (dictum); Wharton v. Warner, 75 Wash. 470, 475, 135 P. 235 (1913); Wynne v. Harvey, 96 Wash. 379, 384, 165 P. 67, aff'd, 99 Wash. 693, 168 P. 896 (1917) (conceded by doctor); Annot. Malpractice: Liability of physician, surgeon, anesthetist, or dentist for injury resulting from foreign object left in patient, 10 A.L.R.3d 9, § 3 (1966). Consequently, the evidence in this case supports an inference that someone was negligent.

Evidence is sufficient to support an inference that negligence was the defendant's when a foreign object is left in the patient and, according to expert testimony, the defendant had the responsibility to remove it. Conrad v. Lakewood Gen. Hosp., ³ 67 Wash.2d at 937, 410 P.2d 785; McCormick v. Jones, ⁴ 152 Wash. at 511, 278 P. 181. Absent expert testimony, ⁵ evidence is sufficient to support an inference that negligence was the defendant's when a foreign object is left in the patient and the defendant is either (a) the surgeon in charge of the operation, Nelson v. Murphy, 42 Wash.2d 737, 739-40, 258 P.2d 472 (1953) (dictum), Wharton v. Warner, 75 Wash. 470, 475, 135 P. 235 (1913), Wynne v. Harvey, 96 Wash. 379, 384, 165 P. 67, aff'd, 99 Wash. 693, 168 P. 896 (1917), or (b) a doctor participating in the operation under circumstances warranting a reasonable inference that he or she had the responsibility to remove the object. ⁶ Conrad v. Lakewood Gen. Hosp., 67 Wash.2d at 939, 410 P.2d 785 (circumstances supported inference that assisting general practitioner was negligent). Contrary evidence supporting an inference that negligence was not the defendant's often will not dispel the inference that it was; even if such evidence be "weighty, competent and exculpatory," it will merely generate an issue of fact for the jury to decide under proper instructions. Brown v. Dahl, 41 Wash.App. 565, 582, 705 P.2d 781 (1985). Occasionally, however, evidence supporting an inference that negligence was not the defendant's will so strong to dispel the countervailing inference; and when that is the case, the defendant's negligence will cease to be an issue of fact for the jury. Kemalyan v. Henderson, 45 Wash.2d 693, 706, 277 P.2d 372 (1954); ⁷ Leonard v. Watsonville Comm'ty Hosp., 47 Cal.2d 509, 305 P.2d 36, 42 (1956); Annot., Applicability of res ipsa loquitur in case of multiple medical defendants--modern status, 67 A.L.R.4th 544 (1989). As summarized at 67 A.L.R.4th 557:

[C]lear and uncontradicted testimony at trial that a certain defendant was not responsible for the injury to the plaintiff may dispel, as a matter of law, as to that defendant the inference of negligence which had earlier arisen under the doctrine of res ipsa loquitur.

In this case, the plaintiff did not present expert testimony, but he did introduce evidence that a sponge had been left in his body and that the defendant was the surgeon in charge of the operation. Viewed in isolation, that evidence is sufficient to support a reasonable inference that the defendant was negligent. ⁸

Plaintiff's evidence, however, cannot be viewed in isolation. A purpose of summary judgment proceedings is to avoid useless trials. Olympic Fish Prods., Inc. v. Lloyd, 93 Wash.2d 596, 602, 611 P.2d 737 (1980); Jacobsen v. State, 89 Wash.2d 104, 108, 569 P.2d 1152 (1977). At trial, it is all the evidence, not just plaintiff's evidence, that determines...