*1 534 of a this instruction or one because
Wе reversed where the I cannot see given. nature similar the issue way pertinent case any this holding for, course, us, nature under the very of before presently are the actions prosecutrix charge rape, if not more so. says, as what she as fully important are, yet we this opinion, presenting I regret disposing mortgaged defense to chárge another property. dissent.
I respectfully Shirley v. PRY Walter Mrs. JONES John 606 S.W. 2d 487 5-6049 4, Opinion delivered December 8, [Rehearing January denied 1973.] for Alonzo D. Camp, appellant.
Wright, Lindsey Jennings, appellee. appeal by This is an Fred Jones, Justice. J. Shirley Pry judgment County *2 from a of the Miller Cir- directing jury appellee-defen- a cuit Court verdict for malpractice dant, Dr. in a Walter medical Jones, John brought by Pry. suit Mrs. appear appellant as The facts follows: Mrs. Pry surgery hospital underwent a Texarkana for the cyst right ovary. of from removal a her The condition diagnosed by surgery performed and the Dr. Jones. surgery complete In the course of the removal ovary right necessary was found to be and since Mrs. Pry’s previous surgery had uterus been removed in the longer reproductive and her ovaries were of use as organs, ovary Dr. сoncluded that the left should Jones process removing be removed also. In the ovary, the left Pry
the left ureter was severed and Mrs. filed against County suit Dr. in the Miller Circuit Court Jones guilty alleging negligence that he was of medical particulars, including perform pre- several failure to operative studies; failure to demonstrate and isolate the severing left and in ureter the left ureter. surgical In his answer Dr. admitted the re- Jones during
moval both ovaries. He admitted that surgery “inadvertently course of the left ureter was da- maged promptly repaired.” He denied the other allegations. Pry When Mrs. her rested at case the close evidence, of her Dr. moved a directed verdict Jones granted. appeal and his motion was On her to this court Pry following point relies on the for reversal: granting “The trial court was in error in defendant’s plain- motion for a directed verdict at the close tiff’s case.” by Pry Dr. a was called as witness Mrs. and he Jones Pry hysterectomy
testified that Mrs. back in 1968 and at that time her uterus was removed. testified He operation for the removal of ovaries he found the left ureter bound scar tissue from adhesions but otherwise, tell, as far he as could thе left ureter was a
healthy organ carrying in con- out normal function its kidney veying the bladder. Dr. from urine Jones removing the left testified that then including vessels, completely blood severed ureter immediately He that he nerves. testified muscles and urology, Teasley, specialist Dr. Gerald called damaged suturing Teasley repaired the ureter Dr. together. it back part testified as cross-exаmination
On Jones follows: urinary would incontinence Jones, Doctor
“Q. *3 any way involved with ureter? only way you get urinary It be. The would A. could if from the wound had the ureter incontinence healed, ab- and drains out on the never the urine vagina, place else. That domen or the or some anything wouldn’t have to do with the function of in the exit of urine from the bladder. the bladder drainage you course, tyрe if had And Q. you you? it, know wouldn’t would Yes, A. sir. question be would about it? There
Q. No, A. sir. cavity, or— would fill The urine abdominal
Q. maybe. skin, A. Or run out the you any reason to Q. Do believe that Mrs. Pry difficulty? that kind of has surgery.” does, If A. she is not related to that Pry practical Mrs. testified that she was a licensed gynecologist and as nurse had worked a nurse to the and period in Texarkana for a at Clinic obstetrician Southern years. she awaken- when three testified almost She following surgery, changing dressings her a nurse was ed recognized dressing She said that on her abdomen. she “heavy drainage dressing,” completely that it as dressing abdomen. testified that when the covered her She drainage protruding removed, she observed one tube operative the lower end of from abdominal incision protruding and another one from her left side. She curiosity testified that the two tubes her aroused be- drainage she placed cause knew that a tube following oophorectomy. into the left side a normal Pry draining Mrs. testified that urine seemed from suspected side; the tube in her left that she her ureter suspicion been severed that she confirmed her from entries on her chart. said that a She considerable continuоusly urine volume of flowed from the tube her left side and her skin around the drain became blistered, bandages. because of the urine soaked She necessary said it was to have for the medication blistered skin. Pry following surgery testified that her a ca- placed purpose
theter was her bladder for the draining bladder, the urine from the but that the cathe- *4 day following surgery. ter was removed on the fifth day following She said the surgery that on tenth the discharged hospital she was from the with the drain draining tube still her left side and with urine still it. from She testified that after she had been home for weeks,
about one and half urine the contined to flow from the drain tube in about the same as volume when hospital developed was in the she and that when she temperature, Teasley she returned to Dr. who readmitted hospital. Pry pro- her to the Mrs. then testified to as the by attempting cedure followed the doctor in to insert kidney through a ureter catheter from her bladder to the passed through the left ureter. She said the catheter was up difficulty the bladder and the into ureter without but up ureter, as it was inserted further the instead of con- tinuing kidney, through inside the ureter to the it went opening an in the wall of the ureter whеre it
been severed and had not healed. said she was in She hospital days the on this occasion for five and that following by procedure Teasley the carried out Dr. opening up drainage through ureter, the of urine stopped. tube her side soon Pry’s hospital discharge signed by record Dr. part reads in as follows: Jones surgery, ovary densely “At each bound to the pelvis. ovary up sidе walls of the The left was lifted pedicle clamped, ligated. and its cut and In the operative procedure, further the left ureter could apparent not be demonstrated. It was then that the lay left ureter in the middle of the left ovarian pedicle by and was on surrounded all sides the ova- Teasley rian vessels. Doctor anastromosis of the ureter with no ureteral catheterization. A in her side. did an end to end
splinting and no penrose placed drain was Postoperatively, her course was unevent- ful, through save she drained considerable urine draining stab wound left side and was still at hospital.” the time she was dismissed from the Operation signed Report reads Jones part as follows: sharp dissection, difficult much “With densely finally exposed. to the is adherent It is pedicle up, pelvis. is lifted its It is side walls Bleeding ligated. clamped, At controlled. cut time, the left ureter cannot looked this we appears ureter to be the see what it. locate We pedicle. isolat- clamped It is ovarian tissues Teasley in and comes end. Dr. it is the lower ed as *5 ways up it, and verifies both runs a catheter then goes by putting end into the bladder lower that the Dye some intо bladder. Anastomoses the end of inserted, ex- is catheter, Penrose drain and a this area.” traperitoneally left down to on the
539 party testimony Expert from third medical witnesses necessary every in medical mal or even is not essential practice necessity for the introduction of ex case. The testimony malpractice pert cases was exhausti medical Trammell, vely 372, Ark. considered Lanier v. 207 expert 818, held that that case we 180 S. W. 2d negligence testimony required when the asserted is not laymen, such jury of comprehension of a within lies surgeon’s to sterilize his instruments as a failure [as sponge or to remove a from the in Lanier] evidence again closing it. This rule was reiterated before incision 6, Sisco, 949, v. Ark. 449 S. in Graham W. 248 2d summary judgment reversed a in which case we attending physician in favor of the who had trial court deeply” injured delivering an “cut so he unborn child very recent case In the section. the child .ceasarean 712, Kemp, , we Ark. 481 S.W. 2d v. of Davis affirmed the a verdict for the case. In that case the 252 925 directing judgment court the trial malpractice in a defendant doctor alleged negligence doc was the irrigate, probe x-ray an аnkle tor’s failure glass upon wound for broken the first visit to the doctor’s when it later office determined that some glass already broken was concealed the wound. As stated, we affirmed direction of a verdict in Davis v. Kemp doing so, under the facts of that case but in we said: applicable
“The rule is well settled in this State. Sisco, 6, Graham v. Ark. 248 449 S. W. 2d (1970): necessity
‘The for the introduction of medical testimоny malpractice exhaustively cases was con- Trammell, 372, sidered in Lanier v. 207 Ark. 180 S. (1944). expert testimony W. There we held 2d required negligence is not when the asserted lies comprehension jury laymen, within the of a such surgeon’s aas failure to sterilize his instruments sponge or to remove a closing from the incision before applicable hand, it. On other when the standard of care not a mattеr of common know-
ledge jury expert the must have the assistance of coming upon a issue witnesses in to conclusion the negligence.’” of Returning bar, now to the case at admitted Jones
in his answer and also from the witness stand that he “inadvertently” removing severed the left ureter the ovary. left gency The evidence indicates no such medical ur- might required
that proce- fast unusual justified severing dure or the inadvertent of the ureter surgical ovary. the question removal of the left There is no that Dr. was familiar with of the normal location Jones the left ureter and the evidence is clear that he looked for and to proper failed find it at its usual and loca- indicates, however, tion. The pro- evidence that he to identifying ceeded remove the left without first only the left ureter and found the left ureter he when noticed the severed pedicle end of it in the severed of the ovary. Dr. was bound to have known that left Jones lay ureter surgical somewhere in the immediate area of opinion invasion are and we the trial court directing erred a verdict for Dr. at the close Jones Pry’s of Mrs. case. correctly appellee argues The court di- that trial “appellant’s lacking evidence, a because the rected verdict testimony, as a medical was insufficient mattér permit jury appellee’s alleged law a inference acts proximate appellant’s a or omission were cause al- leged damages.” argument. find merit this We ample There is evidence that the “stab wound” in Mrs. Pry’s purpose inserting for sоle side was drainage to the severed ureter and this was done. day period The evidence is clear that second five hospitalization brought about because thé sewered of ureter still kidney properly healed
had not continuing through the to drain stab wound urine Pry’s bladder, rather left side than into her and that “opened until the ureter was this situation continued up” between bladder the wound wall ureter surgically repaired. been severed and where judgment is reversed and this the trial court trial. new remanded cause *7 remanded. and
Reversed J.,
Brown, not participating. J.,
Fogleman, dissents dissenting. majority A. Justice, The Fogleman, John equates the in evidence this case with that in Lanier v. Trammell, 372, Ark. 180 The 207 S.W. 818. distinc- 2d tion seems so clear to me it should leave no room for that argument. expert testimony required course, Of was not to wash, surgeon show that fаilure of a to his hands or to surgical operation sterilize his instruments before an or to surgical sponge the from incision constituted remove knowledge. negligence as these are matters of common majority opinion are of set out the If the matters knowledge, however, I am to learn common astounded ordinary person acquaintance of the of the of the еxtent anatomy and its functions. with the human necessity for distinction between cases as to the The testimony clearly pointed Lanier, expert out where we said: testimony, any dispute could, the
If there under operation as to the method used the patient necessary of the it would be to treatment by expert witnesses, method establish correct not that There but we do no situation here. dispute proper whatever as to what was course by pursued appellant preparing per- for to be and forming operation. that It was denied it was necessary proper appellant to and cleanse his thoroughly hands and to sterilize his instruments. dispute or not this case was as to whether appellant followed course which is conceded necеssary Appellant says proper. to be that he appellee one of his testified did and witnesses that he did not follow this course. No amount any light testimony what- have thrown could question in this case. real ever on the Gray efficacy recognized in Lanier the v. alsoWe saying: 94, 1, McDermott, Ark. 64 S.W. 2d required Our conclusion that are not we set to aside jury in this verdict case because of lack of expert testimony support medical or to it not in anything opinion conflict said in our with Gray McDermott, 1, v. case 188 Ark. 64 S.W. 94, In that 96. case 2d was insisted the com- plaining party surgeon operating things failed do certain he should have *8 surgeon expert done. The and the witnesses testified surgeon operated in approved that case that the in an manner, and skilful it would not have been рroper surgeon things, the to have done the the negli- omission of which was claimed to amount to gence. jury held It was in that case that a should not permitted “speculate experts to or whether not the practice profession in pursued the of their the proper procedure.” course of haveWe no such situa- tion in question the case at bar. The here not аppellant operating whether approv- in followed the doing ed and so, skilful method not, but whether or prior operation, to the he sterilized his instruments jury and cleansed his hands. The found that he did do No so. amount of or medical testi- mony proper as to the improper operat- or method of ing any light question, would have thrown on this question litigation. which the sole was Gray allegations negligence McDermott, In the v. surgeon negligent open failing were that the was to axillary up an a wound to ascertain that vein sever- was by failing, began ed a bullet and when the vein to profusely during subsequent surgery, ligate bleed to patient ends of the vein. The died and his widow both instituted allegation She suit. introduced on first evidence negligence. There we said: proper question or or not wаs as to whether open physicians charge up improper to for the August probe or it on some into the wound subsequent whether or not time thereto to determine by bullet; and also the severed a vein been physicians negligent question were as to whether September failing ligate ends of the vein on in 3, requiring to both questions operation performed, were when the knowledge to determine. It scientific can- jury speculate not be left to a to not and should experts practice or not the of their whether proper proce- pursued profession have course of dure. departed ascertain, to we have never far as I am able
So principles. from these every question requires here involved
I submit alleged negligence knowledge to determine. The scientific appellant’s failing severing ureter, and in ureter, perform preoperative studies, to demonstrate safety of the ureter and to to take measures isolation- urologist performing operation. I associate a can argument of no that could be advanced that conceive preoperative question studies assoсiation of urologist purely were not matters within the realm expertise majority of medical alone. It seems to that the me *9 negligence urgency find evidence of in a lack of which procedures would necessitate fast or unusual for the re- appellant’s ovary, surgeon’s moval of left identifying ovary proceeding first this without to remove appellant’s ovary his failure to find thе left after proper place, concluding and in ureter its that Dr. lay was bound to know that left ureter some- Jones surgical where in the immediate area of invasion. by appellant: in the was thus stated The issue case negligent severing plaintiff’s Was the defendant ureter while concerned with plaintiff’s removing ovaries? areWe standards defendant observed removing surgically performing the ovaries—in an oophorectomy. Had plaintiff defen- challenged dant’s professional actions in performing oopho- rectomy it would been necessary to establish theory by plaintiff’s means expert medical testi- mony. only We are concerned with defendant’s act the ureter. cutting ureter, of the testimony On the subject may Jones’ as follows: summarized had examined Neither he nor pathologist ureter patient’s microscopically before the surgery. could tell it was healthy As far as he perfectly outside, he found on the organ, except scarring He found where it adhered to the ovary. than abnormal location. other its abnormality are doctor’s reports majority This reproduced opinion.
It seems to me testimony was lacking at least the following essential particulars:
1. The normal position of a normal healthy ureter.
2. The probability of its improbability being a normal position.
3. The probability its being found in the middle of the left ovarian surrounded pedicle the ova- rian vessels.
4. The available used in the procedures com- to detect such an abnormal munity location of the ureter. The effect fact densely
5. *10 side adherent to the walls of the pelvis preventing the detection of location of the ureter before the was removed.
545 learning possessed degree and and of skill 6. The type practice engaged by physicians in his of used community procedures followed in the exercise of that skill circumstances these learning. my pertinent knowledge these facts that of
I confess knowledge,” but may “common than limited more possessed many judges jurors are I adequate knowledge that doubt judgment upon ques- pass physician negligent. tion whether this was proximate in- that evidence of cause is I also feel testimony adequate. The offered showed uncontradicted repair compe- proper made that a the ureter was 11, urologist, 1970, and tests on November tent normal, February 16, 1971, that this ureter reflectеd urinary principal complaint appellant’s in- continence, that follow this condition would not from performed, pre- surgery appellant had and that history urogenital problems. see I do not how vious severing of this ureter can be said to have been the proximate appellant’s cause of condition in the absence testimony upon knowledge of medical based scientific subject. judgment. I would affirm the Roy Cheryl E. SIMOLIN as next K. friend
SIMOLIN WILSON et v. Nilla al Jean 603 S.W. 2d 5-6057 Opinion 4, delivered December 8,
[Rehearing January denied 1973.]