262 F.2d 469 | D.C. Cir. | 1959
Lead Opinion
About a year after the appellee, Dr. Fishback, performed an appendectomy on Ronald W. Young, the appellant, an abscess the size of a small egg had developed on the scar. After Dr. Fishback operated again to relieve the abscess, this action for alleged malpractice was filed against him by the patient and his wife.
The trial judge interrupted the argument of plaintiffs’ counsel, took the case from the jury, and directed a verdict for the defendant doctor, because the plaintiffs had not produced expert testimony to show that leaving a small bit of gauze or a few threads in the wound is not in accord with the degree of skill and care common to surgeons in this locality.
We think the court erred in taking the case from the jury. Everybody knows, without being told by an expert, that it is not approved surgical practice to leave in a patient’s body a small bit of gauze or a few threads therefrom, or any other foreign nonabsorbable substance, no matter how small. It was for the jury to say whether the defendant had left even a small piece of gauze or other foreign substance in the wound and had thus caused the abscess.
Reversed and remanded for a new trial.
Dissenting Opinion
(dissenting).
It seems to me my brethren go too far in this opinion. The difficulty arises from the way in which they state the. proposition. They say “Everybody knows * * * that it is not approved surgical practice to leave in a patient’s, body a small bit of gauze * * * or any other foreign nonabsorbable substance, no matter how small.” Of course the fact that a foreign substance is left-in a wound is not approved by the medical profession. But the question is whether the surgeon’s procedure is approved regardless of whether or not it has an unfortunate incident. I would suppose that in many operations calculated risks must be taken. Failure does not necessarily reflect on the surgeon. Of course a procedure which would risk leaving scissors or clamps in a wound is. clearly unreasonable, but a procedure which risks leaving a single fiber from a thread does not seem to me to be so clearly unreasonable. The point is thajt. the question before the court is not whether the result, or a by-product, of' an operation is approved by the medical profession but is whether the surgeon followed approved procedure. For this reason the presence of a few threads of gauze is not of itself prima facie proof that the cause was a departure from that degree of skill and care approved by surgeons. I am unable to say how minutely a surgeon should examine a sponge before, during and after an operation, how carefully he should avoid cutting a few threads from the sponges, how thoroughly he should explore a wound before closing the incision. It may be that if he did; these things as surgeons think they should be done the foreign body would' not have been left. But perhaps the-exercise of all the care surgeons think is reasonable would not have prevented the-unfortunate occurrence. The jury needed expert testimony on this point. Without such testimony there was no prima facie proof of departure from approved surgical practice.