Lead Opinion
Tbis cause comes here upon an appeal of tbe defendants, Jobn T. Saunders and Julian A. Moore, from a judgment of Nettles, J., rendered in tbe Superior Court of Buncombe County, affirming tbe judgment of tbe general county court of Buncombe County, where recovery bad been made against tbe defendants for injuries wbicb tbe plaintiff alleges sbe sustained tbrougb tbe negligence of tbe defendants in leaving a gauze sponge deeply buried in tbe side of ber leg or bip, about one-balf incb from tbe tbigb bone, where it bad been placed during an operation performed upon ber by tbe defendant Saunders, assisted by tbe defendant Moore.
It was admitted by tbe defendant Saunders that tbe gauze sponge bad been thus left in plaintiff’s body at tbe conclusion of tbe operation and that it bad remained there for a period of some months until tbe second operation, when it was removed. Tbe defendant Moore was not present at tbe second operation, but proof that tbe gauze bad been left in tbe surgical wound, wbicb bad been closed over it, was plenary.
Tbe evidence tends to show that suppurating channels, or sinuses, wеre formed in tbe leg, beginning in tbe vicinity of tbe gauze sponge and extending tbrougb intervening tissues to tbe exterior, where quantities of offensive pus were discharged until tbe second operation. Prior to tbis second operation, оpaque oil was injected into these canals, and one of them traced tbe canal, or sinus, to its origin at tbe sponge, and another sinus, or canal, lay within a quarter of an incb of tbis. Methylene blue, similarly injected to define tbe sides of tbe sinus for excision, followed tbe same course and stained tbe sponge a greenish blue. Tbe hospital chart showed that tbe gauze sponge was infiltrated with scar tissue.
There was evidence sufficient for tbe jury to consider as showing proximate causative connection between tbe presence of tbe pad and certain deleterious conditions complained of — amongst them excessive pain, inconveniеnce, physical and mental discomfort and suffering, disorder of tbe nervous system, and possibly permanent injury tbrougb tbe stiffening of tbe knee joint.
Both of tbe defendants assisted in placing tbe gauze sponges in tbe wound and, under tbe evidencе, we think were both charged with tbe duty of exercising due care in their removal.
Several experts were examined who, in answer to hypothetical questions, approved of the methods employed by the defendants. Their evidence, however, was largely directed to an approval of the general treatment given by Dr. Saunders to his patient and to the general result produced.
There are some exceptions to thе instructions given to the jury upon the trial, but it is unnecessary to discuss them in detail here, as we do not find them sufficiently meritorious to entitle the defendants to a new trial.
The real controversy here is over the refusal of the trial judge to grant the defendants’ motions for judgment as of nonsuit, made upon the trial.
The defendants contend that there was no evidence of negligence on the trial of the cause, except that which might be inferred from the doctrine оf res ipsa loquitur, applied to the fact of leaving the gauze sponge in plaintiff’s body at the first operation. They contend that the doctrine of res ipsa loquitur has no application to the facts of this case; but that if it does apply, its force is spent, and the presumption of negligence raised by it is fully met, when upon the trial an explanation was given with regard to the matter and the facts made fully known.
It is a well settled rule that upon a motion by the defendant for judgment аs of nonsuit, the reviewing court cannot consider the evidence of defendant, whether contradicted or uncontradicted, except in such respect as it may tend to support plaintiff’s case. Davidson v. Telegraph Co.,
Muсh loose discussion has been given to the question of the availability of res ipsa loquitur in medical and surgical cases involving charges
It follows, from the rule that the physician or surgeon is not an insurer of results, that no presumption can arise from the mere result of a treatment upon the theory that it was not satisfactory or less than could be desired, or different from what might be expected. Red Cross Medical Service Co. v. Greene, 126 Ill. A., 214; Thorp v. Talbert,
But where propеr inferences may be drawn by ordinary men from proved facts which give rise to res ipsa loquitur without infringing this principle, there should be no reasonable argument against the availability of the doctrine in medical and surgical cases involving negligence, just as in other negligence cases, where the thing which caused the injury does not happen in the ordinary course of things, when proper care is exercised. Vergeldt v. Haartzell, 1 F. (2d), 633; Brown v. Shortlidge,
The case at bar stands entirely clear from this field.
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. Pendergraft v. Royster,
We cannot agree with the defendants’ counsel that res ipsa loquitur affords only an infertile presumption, designed merely to require the defendants to go forward with the evidence, or that the inferences drawn from it are fully met when evidence of the facts is introduced. We are aware that the rule, as contended for by the defendants, has been applied in some jurisdictions; but in those States where both the credibility of witnesses and the weight of evidence is a matter for the jury, аnd the explanation is in defendant’s evidence, the rule, necessarily, does not apply. Tennessee C. R. Co. v. Walker,
The effect of the presumption is no longer an open question in this State. The decisions are contrary to the proposition that any explanation which the defendant may see fit to furnish of matter's 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. "Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderancе is with the plaintiff. Such, We think, is the view generally taken of the matter in well considered judicial opinions.” Modlin v. Simmons,
But the plaintiff need not invoke the doctrine of res ipsa loquitur in order to prevail in this ease. The fact itself, that is, the leaving of a sponge within the body of the patient, is so inconsistent with due сare as to raise an inference of negligence. Whatever may be said of the applicability of res ipsa loquitur, natural evidence cannot be withdrawn from the jury by applying to it a doctrinal label.
We think the challenged evidеnce sufficient to sustain the verdict. We find no error in the trial of the case, and the judgment of the court below is
Affirmed.
Concurrence Opinion
concurs on the ground that the evidence is sufficient to carry the case to the jury, but is not in accord with all that is said in thе opinion on .the application of res ipsa loquitur, especially in respect of its presumptive effect.
The charge contains an inexact expression in reference to the “proper degree of skill” required of the defendant. Taken contextually, however, it is not perceived that ány material prejudice resulted therefrom.