Plaintiff filed this medical malpractice action against his surgeon and the hospital (defendants) after a clamp was left behind his heart following open heart surgery. Plaintiff relied on res ipsa loquitur to infer negligence without using expert medical testimony to establish the standard of care. The trial court found that, without expert medical testimony, it could not conclude that leaving a clamp in plaintiffs chest would not have happened in the absence of negligence on the part of defendants. The trial court granted defendants’ motions for directed verdict, and plaintiff seeks a reversal of the judgment. We reverse and remand.
The parties stipulated to the following facts. Defendant Dr. Wilkinson (surgeon) performed open heart surgery on plaintiff at Rogue Valley Medical Center (hospital). Three surgical nurses (nurses) were supplied by the hospital. During the surgery, a serrefine clamp 1 slipped off a vein and fell behind plaintiffs heart. During his final inspection at the end of surgery, the surgeon inspected the grafts and suture lines but overlooked the serrefine clamp. At the operation’s conclusion, plaintiffs chest was closed and plaintiff was returned to the hospital recovery room. A routine x-ray shortly thereafter revealed the clamp behind plaintiffs heart. A few hours after the first surgery, plaintiff underwent a second surgeiy where his sternum was again retracted and the serrefine clamp was removed. There were no further complications. The second operation would not have been necessary if the serrefine clamp had been removed during the initial surgery.
At the time of surgery, it was hospital policy to account for sponges and needles, but there was no policy or procedure to account for surgical “instruments.” A serrefine clamp is considered an instrument. The surgeon stated in his deposition that it was standard operating procedure not to leave instruments, sharp needles, or sponges in a patient. The surgeon also stated it was standard operating procedure for the surgical team, including the nurses, to account for the instruments “in general terms.” However, the nurses did not *640 place the clamp inside plaintiffs chest. Finally, the surgeon admitted that it is difficult to lose large instruments in the pericardial sac, that the area around the heart is usually inspected carefully before and after surgery, and that the clamp was in a place where he did not see it.
Plaintiff asserted that the surgeon and nurses were negligent and that the hospital was vicariously liable for the alleged negligence. 2 The trial court, however, granted defendants’ motions for directed verdict at a pretrial hearing after reviewing the stipulated facts and plaintiffs indication that he would not offer expert medical testimony. The trial court determined that plaintiffs evidence did not, as a matter of law, present a jury question under res ipsa loquitur.
Res ipsa loquitur
is a rule of evidence whereby circumstantial evidence may be used to prove ultimate facts.
McKee Electric Co. v. Carson Oil Co.,
Whether
res ipsa loquitur
applies is a matter of law to be determined by the court.
Cummins v. City of West Linn,
Defendants argue that the stipulated facts do not establish the elements necessary to permit the inference of negligence allowed under res ipsa loquitur. First, they argue that plaintiffs proposed testimony is insufficient to prove his damages. Defendants also argue that expert medical testimony is required to establish the standard of care from which a jury may infer that it is more probable than not (1) that the injury would not have occurred without someone violating that standard of care and (2) that defendants were negligent. Plaintiff maintains that the evidence he presented was competent to establish his injury and the standard of care from which defendants’ negligence could be inferred. We agree with plaintiff.
As to the first element of injury and damages, Oregon recognizes that a plaintiff who suffers a physical impact or injury is entitled to claim mental anguish damages.
Harris v. Kissling,
*642
Regarding the inference of negligence, plaintiff argues that the surgeon, nurses, and hospital owed him a duty not to leave the serrefine clamp in his chest after surgery. Such a general statement may assert the obvious, but it does not end our analysis. “ ‘Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine [of
res ipsa
loquitur] should not be applicable unless it can be said’ ” that the injury was due to someone’s negligence.
Jeffries v. Murdock,
Providing a rational basis from which to infer negligence does not always require expert testimony in medical malpractice cases. The Supreme Court has noted:
“ ‘Expert testimony is an indispensable part of plaintiffs case only when the average juror cannot be expected to understand the issues without that kind of assistance. It is not required simply because the circumstances are outside the average juror’s experience if the other evidence is such as to present the issue in terms which the jury can be expected to understand.’ ”
McKee,
*643
Defendants’ efforts to distinguish the serrefine clamp from other applications of
res ipsa loquitur
where objects were left in patients after surgery are not persuasive. Neither is the argument that the instrument could have been left without negligence. The surgeon testified, at his deposition, that it was not the usual medical procedure to leave a clamp in the patient and that it is “difficult to lose a large instrument inside the pericardial sac.” While it appears that the serrefine clamp is smaller than many instruments, the common-sense inference, supported by the surgeon’s testimony, is that the clamp would be found and removed by a reasonable search of the area and that, if circumstances necessitated leaving the clamp within plaintiff’s body for a valid medical purpose, evidence of those circumstances could overcome the inference of negligence.
See Hall,
For
res ipsa loquitur
to apply, the inference of negligence must be attributable to a particular defendant,
Peters v. City of Medford,
Traditionally, a defendant’s negligence was established only by showing that the defendant had exclusive control of the instrument causing injury.
Id.
at 638. However, we recognize that there are bases from which to infer probable responsibility that do not require proof of exclusive physical
*644
control or custody by a single defendant.
Denny,
We also recognize that
res ipsa loquitur
cases may have multiple defendants to whom the
res ipsa loquitur
inference can attach if the plaintiff can trace the probable negligence to each of the defendants.
Umpqua Aquaculture,
“The effect of applying a rule of alternative liability to a case in which neither defendant is able to produce exculpatory evidence is to impose liability where the probability of causation is 50 percent or less (‘as probable as not’ or ‘less than probable’) as opposed to the traditional 50+ percent (‘more probable than not’) preponderance of evidence standard and to impose liability on all defendants when in fact only one of them could have caused plaintiffs harm.”
See also Barrett,
We think it obvious that the doctrine of
res ipsa loquitur
applies to the surgeon. The surgeon admitted in his deposition that he was responsible for searching plaintiffs body
*645
cavity to remove instruments, needles, and sponges. Given this evidence of direct responsibility, an inference can easily be drawn that it is more probable than not that his failure to search carefully caused the clamp to remain behind plaintiffs heart, requiring a second surgery for removal.
See Piehl,
Surgeon argues that Oregon courts have rejected the “Captain of the Ship” doctrine and that we therefore cannot presume that he is responsible for the acts of other hospital employees assisting him.
Holger v. Irish,
Negligence can also be inferred against the nurses under the
res ipsa loquitur
doctrine. As discussed earlier, the nurses, as employees of the hospital, owed a duty to plaintiff not to leave metal instruments in his chest cavity after surgery. The surgeon’s deposition, which indicated the nurses were responsible for accounting for instruments “in general terms,” connects the nurses to the clamp. While the hospital had no official policy establishing specific procedures that the nurses were required to take, such a policy is not necessary where the surgeon’s testimony is competent evidence to establish the standard operating procedure for the nurses. Thus, plaintiff has provided evidence that the instrument causing the injury was within the nurses’ responsibility.
*646
Denny,
Because we reverse and remand the malpractice action against the surgeon, the hospital may also be vicariously liable for the surgeon’s alleged negligence if he was acting as the hospital’s agent. The hospital argues that the pleadings and stipulated facts fail to prove that the surgeon was acting as an agent of the hospital, and thus the directed verdict for the hospital should be affirmed in part on the issue of vicarious liability for the surgeon’s conduct. The sole basis for the trial court’s directed verdicts in this case was the initial and dispositive concern about the lack of expert testimony on the standard of care and damages. Neither party was given the opportunity to argue or present evidence on the agency issue. We decline to affirm a directed verdict on an alternate ground based on insufficient evidence regarding an issue for which no opportunity to present evidence was provided.
See Bush v. Greyhound Lines, Inc.,
Reversed and remanded.
Notes
A serrefine clamp is a small spring forcep used for closing the cut end of an artery or vein during an operation.
Plaintiff did not assert direct liability against the nurses but asserted that the nurses were the hospital’s employees or agents and, thus, vicariously liable. Plaintiff also alleged that the surgeon was the hospital’s agent. Plaintiff asserted vicarious liability on the surgeon’s practice, Cardiovascular & Thoracic Clinic. For simplicity, our references to the surgeon also include his practice.
On this review of a directed, verdict, we express no opinion as to the sufficiency of evidence at trial to prove plaintiffs allegations of additional pain and delay in healing damages.