Elsa H. NIXDORF, Plaintiff and Appellant, v. N. Frederick HICKEN and A. James McAllister, Defendants and Respondents.
No. 16151.
Supreme Court of Utah.
May 27, 1980.
348, 349, 350, 351, 352, 353, 354, 355, 356, 357
MAUGHAN, Justice:
The plaintiff appeals the district court‘s granting of a directed verdict in favor of the defendants. Following the preservation of the plaintiff‘s case the defendants moved pursuant to Rule 50 for a directed verdict. The court granted the motion and entered its judgment thereon. We reverse and remand the action for a new trial. All statutory references are to Utah Code Annotated, 1953, as amended.
For a period of approximately ten years, the plaintiff, Elsa H. Nixdorf, suffered from a cystocele and rectocele.1 In June 1964 she contacted the defendant, Dr. N. Frederick Hicken, concerning the alleviation of these problems.2 Although Dr. Hicken initially counseled the plaintiff on the necessity of a hysterectomy, during the subsequent operation which he performed on June 5, 1964, he elected instead to merely repair the cystocele and rectocele and amputate a portion of the plaintiff‘s cervix.
The repair of the cystocele was completed without incident. However, during the repair of the rectocele one of the curved cutting needles used to suture the torn diaphragm became disengaged from the needleholder. Although the doctor realized the needle remained in the operating site, his attempts to locate it by palpating the suspect area were unsuccessful and the operation was completed without recovery of the lost needle.
Following the operation, the plaintiff remained under the care of Dr. Hicken until his retirement on July 1, 1970, when his partner, Dr. A. James McAllister, assumed the plaintiff as his patient.3 Notwithstanding the plaintiff‘s repeated complaints of pain in the pelvic-abdominal area, Dr. Hicken and Dr. McAllister never informed her of the presence of the needle. In fact, the plaintiff had no knowledge of the presence of the needle until 1976 when Dr. Robert Maddock, who she consulted because of lower abdominal pain, revealed its presence to her.4
At trial the plaintiff averred the defendant Hicken was negligent in the performance of the 1964 operation and because of his negligence, she has incurred certain damages, e. g., pain and suffering and related medical expenses. Plaintiff also averred the defendants acted negligently in not informing her of the presence of the needle.
At the conclusion of the plaintiff‘s case, the defendants moved pursuant to Rule 50, Utah Rules of Civil Procedure, for a directed verdict on the grounds the evidence presented by the plaintiff was insufficient as a matter of law to create a jury question on the defendants’ negligence. The trial judge granted this motion on the basis of the plaintiff‘s failure to introduce expert testimony to establish the applicable standards of care.
In malpractice actions generally the physician is held to the standard of skill employed by his contemporaries in the same or similar communities. Therefore, before the plaintiff can prevail in a medical malpractice action, he must establish both the standard of care required of the defendant as a practicing physician in the community and the defendant‘s failure to employ that standard.
However, this Court has recognized certain exceptions to the general rule requiring expert testimony.5 Specifically, expert testimony is unnecessary to establish the standard of care owed the plaintiff where the propriety of the treatment received is within the common knowledge and experience of the layman. The loss of a surgical instrument or other paraphernalia, in the operating site, exemplifies this type of treatment. We explained in Fredrickson v. Maw:6
Whether a surgical operation was unskillfully or skillfully performed is a scientific question. If, however, a surgeon should lose the instrument with which he operates in the incision . . . it would seem as a matter of common sense that scientific opinion could throw little light on the subject.
The loss of the surgical cutting needle by Hicken falls squarely within the perimeters of this exception to the general rule. The guidance provided by expert testimony is unnecessary in this situation and, therefore, expert testimony should not have been required to establish the professional standard of care under the facts of the present case.7
Concomitant with the establishment of the community standard is the plaintiff‘s proof that the defendant failed to exercise the level of skill this standard requires.
When the appropriate evidentiary basis is presented a plaintiff may employ the doctrine of res ipsa loquitur to carry this burden.8 This doctrine establishes an inference of negligence from the circumstances incident to the operation.9 It is a procedural rather than substantive rule of law which carries the plaintiff past a motion for nonsuit where the circumstantial evidence introduced by the plaintiff is sufficient to support the application of the doctrine and its inference of negligence.10
We delineated the evidentiary foundation which the plaintiff must establish before employing the doctrine of res ipsa loquitur in Moore v. James11 when we stated:
The rule . . . is applicable when: (1) The accident was of a kind which, in the ordinary course of events, would not have happened had the defendant used due care, (2) the instrument or thing causing the injury was at the time of the accident under the management and control of the defendant, and (3) the accident happened irrespective of any participation at the time by the plaintiff.
However, in certain situations, the medical procedure is so common or the outcome so affronts our notions of medical propriety that expert testimony is not required to establish what would occur in the ordinary course of events. In this type of situation the plaintiff can rely on the common knowledge and understanding of laymen to establish this element.13
Notes
Therefore, when the instrumentality causing the injury is in the exclusive control of the defendant, and the plaintiff does not participate in the acts causing the injury, then negligence may be inferred from the injury alone if: (1) the cause of injury is so obviously negligent that negligence may be inferred as a matter of law; (2) people would know from common experience the result would not have happened without negligence; or (3) when a physician testifies bad results would not have occurred if proper care had been used.14
While we will not say the act of the defendant in losing the needle from the needleholder was negligent as a matter of law, the bad result, i. e., the needle present in the body of the plaintiff, is such that people would know from common knowledge and experience it is more probably than not the result of negligence.15 Therefore, in the present case, expert testimony was not required to establish this element of the doctrine of res ipsa loquitur.
The evidence presented at trial indicates the instrumentality which caused the bad result was in the exclusive control of the defendant at the time of the accident. Furthermore, the plaintiff was under a general anesthetic and could not participate or contribute to the act causing the injury. These facts when combined with the nature of the accident provide a sufficient evidentiary foundation for the application of the res ipsa loquitur doctrine in this case. The application of the doctrine provides a rebuttable inference of negligence which will carry the plaintiff‘s case past the motion for nonsuit.16
Therefore, under the facts of this case, expert testimony was not required to establish the negligence of the defendant and the trial court erred in granting a directed verdict against the plaintiff because of the lack of that testimony.17
The scope of the duty is defined by the materiality of the information in the decisional process of an ordinary individual. If a reasonable person in the position of the plaintiff would consider the information important in choosing a course of treatment then the information is material and disclosure required.20
Once the duty to disclose certain information is established, then the physician‘s total breach of that duty,21 as found in the present case, presents to the jury the question of what damages were proximately caused by the breach. Where the physician fails to disclose to his patient any information concerning a material fact, there is no question of skill and judgment, no question of practice beyond the knowledge of laymen which must be established through expert testimony22. To borrow Justice Wiest‘s much quoted phrase from Ballance,23 even the “merest tyro” would know the nondisclosure was improper.24
CROCKETT, WILKINS and HALL, JJ., concur.
STEWART, Justice (dissenting in part and concurring in part):
I respectfully dissent.
The majority, in my view, misapplies a common sense rule, applicable in simple malpractice fact situations, and arrives at a result which would allow the jury to find negligence in total ignorance of whether Dr. Hicken‘s conduct violated the applicable standard of care. Clearly this case falls within the scope of the rule that expert testimony in a medical malpractice case is necessary to establish proper standards of medical performance. In particular, the majority misapplies the rule that “loss of a surgical instrument or other paraphernalia, in the operating site, exemplifies [the] type of treatment” that is “within the common knowledge and experience of the layman.” Marsh v. Pemberton, 10 Utah 2d 40, 347 P.2d 1108 (1959). In short, the plaintiff‘s failure to produce expert testimony as to the standard of care will necessarily mean that a verdict is based on speculation.
It is an unrealistic rule that holds in all cases abandonment of a surgical instrument or other paraphernalia in a person during the course of an operation can be considered negligence by a lay person without regard for the nature of the surgical procedures involved. It need hardly be reiterated that a physician is not a guarantor of the results of an operation. Marsh v. Pemberton, supra. Nor does he warrant against all accidents which may occur during surgical procedures. The basis for fastening liability on a defendant in a malpractice suit is negligence, not the occurrence of an untoward circumstance. In the instant case, the surgical operation was not perhaps as unusual and complex as some of the advanced procedures now being used, but it clearly was of such a nature that application of the Marsh rule is inappropriate, and there is no evidence in the record which indicates that Dr. Hicken was negligent at all. There is even evidence that Dr. Hicken‘s conduct may not have been the actual cause of the loss of the cutting instrument in the plaintiff. He testified that in operations of the type he performed on the plaintiff the surgical instrument sometimes breaks just below the eye through which the catgut thread is passed and that, given the nature of the operation, sound medical judgment often dictates leaving the instrument in the body if it cannot be readily located.
A. Well, you are working down there, [inside the vagina], you have the retractors in and you have—you‘re bringing this [i. e., the needle] around on one side of the tissue and trying to bring it around and all at once you don‘t have ahold of the needle and then the thing you do, you have to bring your forceps back out, then you poke—use your lights and you look in there to see if you can see it. You put your glove finger in and you try to palpate it to see if you can feel it and as a general rule one can feel and in knowing the exact area in which you were working, one can generally feel where the suture is or the needle is. In this case, we did not find it.
Q. All right. Now, for that needle to become loose from the holder that ratchet could be disengaged, did it not?
A. Well, the ratchet could be disengaged but the needle—by far the more common way of losing a needle in this operation is, you are working up in there—see, I told you, you put your finger here as a guide to exert a little pressure as you bring it around. You are working in a zone that has blood. There is fat. That means there is oils and it‘s possible for this to just rotate and slip out of the needle holder. That‘s the usual thing that happens.
The needle may also break off because of a defect in the needle itself or because of the forceps or other holding implement. Dr. Hicken stated:
For instance, we have no way of knowing whether the needle was whole or broken. From experience in handling these things, where the thread goes through the needle it is very thin and frequently a needle will break at that part but—and you have a little—just a splinter of the eye of the needle left and separates from the main shaft of the needle and when you pull your hemostat back you have nothing. Both the eye of the needle and the main curved needle still remains in situ. That means in position in the area in which you are working.
Loss of the needle could also occur for other reasons.
You are getting a bite of tissue—you are coming down and getting a bite of tissue—you see, here‘s a ratchet that locks it. I showed you yesterday. Now, when you are sewing, you do not have your fingers in these openings of the ratchet. You take your hand out and put it against the palm here using this finger to give you a little force and a directional mechanism for the point of the needle and you come around like this. Now, sometimes you hit heavy muscles, sometimes you have thinner muscles, sometimes you have scar tissue. If the bladder and things have been out too long, that tissue has been irritated and there is a lot of scar tissue until you get some resistance in bringing the needle through and it‘s very easy for the possible that the needle, being in oil and blood and fatty tissue down there, too, that the needle could rotate and slip out. When we bring the needle—when we brought the needle holder out it was still locked and the needle wasn‘t in it so that‘s why you assume that the needle was broken or lost.
Well, because this woman was elderly. She was not in the best physical condition. We had had her on the operating table for one hour and to get X-ray machines at that time—we are talking about fourteen years ago—at that time we had to get X-ray machines from the basement up into the operating room and it would take too much time to complete that sort of a procedure and the second thing is that from my experience in such cases and from being very conversant with literature on this subject, as I was a Professor and teacher in medical schools, I knew that a needle left in this particular area was not particularly harmful to the patient. It is common knowledge that we leave metal in the pelvic area very frequently. Now, for example, in some of our operations instead of using sutures and ties to tie around bleeding blood vessels, we have an instrument that we go in there and we put a metal clip on that blood vessel because it‘s easier to do, it‘s quicker to do and it is innocuous.
This testimony, in my view, destroys the necessary foundation for application of the rule that loss of a surgical instrument in a body establishes, without more, an inference of negligence. Nor do the facts provide a foundation for application of the doctrine of res ipsa loquitur. As this Court stated in Joseph v. Dr. W. H. Groves’ Latter-Day Saints Hospital, 10 Utah 2d 94, 348 P.2d 935 (1960):
[I]t is realized that res ipsa loquitur has been applied in various fields where an injury occurs which is not to be expected if proper standards of care and skill are observed. But this is done only with caution, particularly in the medical field because of the realization that many aspects of the treatment of human ills cannot yet be regarded as exact science and a bad result may obtain even though recognized standards of care and skill are employed. [10 Utah 2d at 99, 348 P.2d at 938.] [Emphasis added.]
I recognize that there is a ring of common sense to the proposition that leaving foreign objects in a person constitutes negligence, see Fredrickson v. Maw, 119 Utah 385, 227 P.2d 772 (1951), but neither justice nor common sense are enhanced by the mechanistic application of a rule of law to a fact situation that is only superficially related to the type of situation the rule was intended to govern. In this case, I cannot see how a jury could possibly find negligence in light of Dr. Hicken‘s testimony and in the absence of any contrary expert testimony. I think the trial judge was right in directing a verdict on this issue.
I concur, however, with the majority that the defendants had a duty to inform the plaintiff of the fact that a foreign object had been left in her body.