Wiles v. Myerly

Citation210 N.W.2d 619
Decision Date19 September 1973
Docket NumberNo. 55567,55567
CourtUnited States State Supreme Court of Iowa
PartiesMary L. WILES, Executor of The Estate of Earl B. Wiles, Deceased, Appellee, v. William H. MYERLY, M.D., et al., Appellants.

Paul Moser, Jr., Des Moines, for appellant, William H. Myerly, M.D.

Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for appellants, Dennis D. Wilson, M.D., and Iowa Methodist Hospital, an Iowa corp.

Louis A. Lavorato, Des Moines, for appellee.

Heard before MOORE, C.J., and MASON, REES, REYNOLDSON and HARRIS, JJ.

MASON, Justice.

Defendants appeal from judgment following an adverse jury verdict in a law action brought to recover for personal injuries to plaintiff's decedent sustained while anesthetized for the purpose of surgery.

January 7, 1969, Earl B. Wiles was operated on for a vascular circulatory problem while a patient at the Iowa Methodist Hospital, Des Moines. Mr. Wiles underwent two episodes of surgery that day. The surgeon both times was William H. Myerly; the anesthesiologist both times was Dennis D. Wilson; and the operations were performed in one of the regular operating rooms of the Iowa Methodist Hospital which supplied appliances, services and employees appropriate to the situation. Following the two sessions of surgery Mr. Wiles developed a condition on his buttocks which was alleged to have been a burn. Although there is a conflict in testimony as to the cause and condition of his buttocks, there was a condition that developed into eschar and finally healed. He died September 20, 1969, from unrelated causes.

Mary L. Wiles as executor of her husband's estate instituted the present action against the hospital, doctors Myerly and Wilson. She relies upon the doctrine of res ipsa loquitur alleging that after decedent was anesthetized for the purpose of vascular surgery involving the front of his body and while unconscious and under the exclusive control of defendants and each of them and their agents and at a time when defendants and each of them and their agents had exclusive control over all the instrumentalities producing the injury, defendants and each of them and their agents negligently caused decedent to be burned on and about his buttocks.

In answer each defendant admitted some allegations of plaintiff's petition but denied generally those charging negligence, proximate cause and damages. Defendants also asserted in defense that the doctrine of res ipsa loquitur was not applicable under the facts pleaded.

Defendants' motions for directed verdict made at the close of plaintiff's evidence and renewed at the close of all evidence were overruled and the matter submitted to the jury which returned a verdict against all defendants in the sum of $25,000.

Defendant-Wilson's and defendant-hospital's motions for judgment notwithstanding the verdict or in the alternative, for new trial were overruled and this appeal followed.

Defendants' combined assignments of error raise three issues before this court: (1) whether plaintiff was entitled to the benefit of the doctrine of res ipsa loquitur; (2) whether the court erred in instructing the jury that Dr. Wilson could be liable for acts of negligence committed by others; and (3) whether the verdict is supported by the evidence.

I. During the first operation Dr. Myerly removed an atherosclerotic obstruction of the aorta, both common iliac arteries and the right femural artery. As indicated, the anesthestic was administered by Dr. Wilson. Dr. J. R. Irwin, first year resident, and Dr. R. L. Kollmorgen, surgical resident at the hospital, and several nurses assisted Dr. Myerly in the operation, but they were not made parties to this action.

As part of the procedure in an operation of this type, an electrical instrument was used to cauterize blood vessels. In using this cautery machine, an electrode which is a flat, metal plate about twelve by eight inches in size had been placed directly beneath the buttocks of the patient as he lay on his back on the operating table. The only thing separating the buttocks from the plate would be the jelly on the plate which is used to make a better electrical contact. The cautery plate was connected to the machine and when activated Mr. Wiles' body became a segment of the electrical circuit.

Decedent's buttocks were not directly prepped for surgery in this instance. The prep solution was poured on the surgical field. The incision made by Doctor Myerly began at the chest cavity and went down the front to the groin and then across both sides. It was described as an upside down 'T,' going over a good portion of the body. Besides his buttocks, the other portions of Mr. Wiles' body that would have touched the operating table would have been his shoulders, a portion of his back, his thighs, the calves of his legs and his heels.

Following the operation which lasted some four hours, Dr. Myerly concluded a second operation was necessary because of an insufficient flow of blood to the patient's legs. It is not clear whether the cautery machine was used during the second operation which lasted about one hour and twenty minutes. Thereafter, Mr. Wiles was removed to the recovery room. At approximately 12:50 a.m. on January 8, 1969, tissue damage was discovered where Mr. Wiles had been in contact with the cautery plate. One nurse noted on the hospital records that at about 4:45 a.m. January 8, the affected area appeared to be 'blistered.' The records further indicate Dr. Irwin examined Mr. Wiles on the morning of January 8 and made these observations 'Burned areas both buttocks. Second degree left buttock, 5 by 5 centimeters, right buttock, 2 by 10 centimeters. Evidentally from cautery plate'. After viewing the damaged tissue, Dr. Myerly made the following entry in Mr. Wiles' progress record: 'Patient discovered during the night to have 2nd to 3rd degree burns of both buttocks. * * * Cause of this is very perplexing in viw of the fact that use of cautery is routine and I personally saw plate placed beneath the patient with a very adequate * * * (amount of K--Y jelly). * * * Will have machine checked for malfunction.' Mr. Wiles' discharge report dated March 12 similarly noted there were 'burns on each buttock.'

Dr. Myerly testified he had 'concluded that (the injured area of the patient's buttocks) was a burn and treated it as such,' although he was then uncertain 'whether the injury would turn out to be a deep burn or be more superficial and second degree burns.' However, at the time of trial he surmised that the cause of the tissue damage was lack of circulation to the buttocks while lying on the hard, metal cautery plate, i.e., pressure necrosis. He further stated all the cautery machines functioned properly when examined by the hospital's electrician.

Dr. Irwin testified he and Dr. Myerly continued to believe Mr. Wiles was suffering from burns at the time of his discharge in March 1969. But at the time of trial, he concurred in Dr. Myerly's medical opinion that the tissue damage resulted from 'pressure necrosis.'

When Dr. Irwin examined Mr. Wiles January 5, he 'noticed that there was nothing wrong with his buttocks at that time. The rectal area had 'good tone', there was no masses in the rectum. The prostate was smooth. The condition of his buttocks at that time was normal, no decomposition of tissue, and no burn.'

The witness next saw Mr. Wiles January 6 following the taking of the aortogram. He described his purpose in seeing Mr. Wiles at that time was to tell him what to expect as far as procedure for getting him ready for his vascular surgery would be. He also checked him to make sure the patient's vital signs were okay and there was no evidence of any bleeding or anything following his aortogram.

Doctor Irwin testified: 'The first time that I can recall that this patient had something abnormal or wrong with his buttocks was when I saw him the next morning, January 8, at about 8:30 a.m. Upon examining this patient, I observed that there was tissue damage on both buttocks which was well circumscribed, meaning there was a definite demarcation between normal tissue and the affected tissue. * * * At that time it was my impression that the problem on the buttocks was a second degree burn.'

Doctor Irwin said: 'A lot of surgery in this hospital as was performed on Mr. Wiles, have been performed on persons of similar size and weight to Mr. Wiles with the same problems and same type of operation. These people were on the operating table as long as Mr. Wiles. There never occurred the same type of problem that occurred in Mr. Wiles' case.'

Dr. Wilson testified he had no 'real conclusive opinion as to what caused' the injury, but stated it was his opinion 'the cautery machine itself was not a factor other than it was part of the surface on which the patient was lying.' He further suggested the injury may have been the consequence of a chemical reaction between the prepping solution used to prepare the operative field prior to surgery and the cautery plate.

No other expert testimony was offered into evidence.

II. Our review is on errors assigned. Rule 334, Rules of Civil Procedure.

The first issue presented by this appeal--applicability of the doctrine of res ipsa loquitur--is raised by Doctor Myerly's first and second assignments of error wherein he contends the trial court erred in failing to sustain his motions for directed verdict made at the close of plaintiff's evidence and renewed at the close of all evidence and the court erred in submitting the case to the jury on a res ipsa loquitur instruction. On the other hand, defendants hospital and Doctor Wilson by amendment to their brief and argument filed five months after plaintiff's brief and argument seek to raise the issue solely by their assignment the court erred in submitting plaintiff's case on a res ipsa loquitur instruction.

Plaintiff in brief and argument contends Doctor Myerly is raising objections to the instruction relating to...

To continue reading

Request your trial
50 cases
  • Squeo v. Norwalk Hosp. Ass'n
    • United States
    • Connecticut Supreme Court
    • April 28, 2015
  • Beeck v. Aquaslide 'N' Dive Corp.
    • United States
    • Iowa Supreme Court
    • May 16, 1984
    ...and hearing the witnesses and viewing all the incidents of the trial. Giltner v. Stark, 219 N.W.2d 700, 709 (Iowa 1974); Wiles v. Myerly, 210 N.W.2d 619, 632 (Iowa 1973). We take the evidence in the aspect most favorable to the findings of the trier of fact. Giltner, 219 N.W.2d at 709; Wile......
  • Jackson v. Oklahoma Memorial Hosp.
    • United States
    • Oklahoma Supreme Court
    • October 17, 1995
    ...surgery); Fox v. Cohen, 160 Ga.App. 270, 287 S.E.2d 272 (1981) (two burns on back from tonsillectomy and adenoidectomy); Wiles v. Myerly, 210 N.W.2d 619 (Iowa 1973) (burn on buttocks from surgery in the chest and groin area); Shoberg v. Kelly, 1 Wash.App. 673, 463 P.2d 280 (1970) (punctured......
  • Brewster v. US
    • United States
    • U.S. District Court — Southern District of Iowa
    • August 17, 1994
    ...v. Smith, 353 N.W.2d 380, 385-87 (Iowa 1984); see also Palleson v. Jewell Coop. Elevator, 219 N.W.2d 8, 13 (Iowa 1974); Wiles v. Myerly, 210 N.W.2d 619, 624 (Iowa 1973). Res ipsa loquitur applies when (1) the injury is caused by an instrumentality under the exclusive control of the defendan......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT