Dacus v. Miller , 257 Or. 337 ( 1971 )

McALLISTER, J.

Plaintiff sued the defendant surgeon for alleged malpractice in operating on her middle ear. The jury found for defendant and plaintiff appeals.

Only two of the several assignments of error need be mentioned. They involve the refusal of the court to give a res ipsa loquitur instruction and the withdrawal from the jury’s consideration of one of the specifications of negligence.

Defendant performed a radical mastoidectomy revision, during which he removed a mass of cholesteatoma. Defendant admits that during this surgery plaintiff’s left facial nerve was injured, causing partial facial paralysis. He contends that injury to the facial nerve is one of the inherent risks of radical mastoid surgery and that the injury in this case was not caused by his negligence. The jury evidently so found.

In Mayor v. Dowsett, 240 Or 196, 214, 400 P2d 234 (1965) we said that the conditions necessary to the application of the principle of res ipsa loquitur are:

“ * * * (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. * * *’ Prosser, Law of Torts (2d ed) 201-202, § 42.”

Elements number two and number three are obviously present in this case. Defendant admits that the nerve was injured while he was performing surgery and there is no question of participation by plaintiff. The only question is whether there is evidence from which the jury could find that condition number one was also present.

Two of plaintiff’s expert witnesses testified that if due care were exercised in the performance of this operation, injury to the facial nerve would not “ordinarily” occur.^① We think this testimony is adequate under the Mayor decision, where we held that plaintiff had made out a res ipsa case because there was expert testimony that “such an injury is not to be expected where due care is observed in the administration of the anesthetic.” 240 Or at 217.^②

It is also significant that, in spite of other expert testimony that injury to the facial nerve is an “inherent risk” in this type of surgery, the injury apparently occurs very rarely. A number of specialists testified to their experiences with similar operations; they reported very few cases in which injury to the nerve caused paralysis.^③

Although we think that this was an appropriate case for a res ipsa loquitur instruction, and that the trial judge should have given a proper instruction if requested,^④ we find, nevertheless, that the instruction requested by plaintiff was defective in form and, for that reason, should not have been given.

In this case the complaint in paragraph V charged the defendant with negligence in 13 particulars. In an apparent effort to invoke the res ipsa loquitur doctrine the complaint also charged the defendant in paragraph VI^⑤ with negligence in general terms. The trial judge in preparing to submit the case to the jury struck eight of the specific charges of negligence and also struck paragraph VI in its entirety.

Plaintiff did not object when the court informed counsel that he was striking paragraph VI from the complaint and has not assigned that ruling as error in this court. We are dealing, therefore, with a complaint which, when the case was finally submitted to the jury, contained only allegations of specific negligence.

In Brannon v. Wood, 251 Or 349, 356-357, 444 P2d 558 (1968), this court held that where only specific acts of negligence are charged res ipsa loquitur can be used only to establish the particular negligent acts alleged. The court quoted the holding from Boyd v. Portland Electric Company, 41 Or 336, 68 P 810 (1902), so limiting the application of res ipsa loquitur.

The instruction requested by plaintiff in this case did not limit the jury to inferring negligence in the particulars alleged in the complaint. Instead, the instruction would have permitted the jury to infer that plaintiff’s injury was caused by “some negligent conduct,” “some negligent act,” or “some instrumentality within the control of defendant.”^⑥ (Italics added.) The instruction would have permitted the jury to find the defendant negligent in some manner not alleged in the complaint and the court did not err in refusing to give it.

The jury in this case was given the customary instruction that the parties were limited to the contentions or claims alleged in their pleadings. The requested instruction was inconsistent with the instruction given and therefore the trial court could legitimately refuse to give the requested instruction for fear of confusing the jury. This does not mean necessarily that it would have been reversible error to give the requested instruction. A trial court will be upheld in refusing to give a technically incorrect instruction even though, after mature consideration, an appellate court might conclude that the giving of the instruction would not have constituted reversible error.^⑦

In Waterway Terminals v. P. S. Lord, 256 Or 361, 474 P2d 309, 313-314 (1970), we recently held that in a res ipsa case a plaintiff may allege negligence both generally and specifically. If he does so, he is entitled to a general application of the inference permitted by the doctrine. That holding cannot aid the plaintiff here. As we have pointed out, the allegation of negligence in general terms originally contained in the complaint was stricken at trial without objection and has not been assigned as error on appeal.

Plaintiff also assigns as error the withdrawal from consideration by the jury of her third specification of negligence, which read as follows:

“In operating, cutting, scraping, lifting, elevating, tearing, burring, and shaving the cholesteatoma matrix and tissue around, on and in the inner ear, and particularly at or near and too close to the course of the facial nerve and its canal, and in other than movements parallel to the facial nerve and its canal”.

The only portion of this specification, if any, not included in the first specification of negligence is the phrase “in other than movements parallel to the facial nerve and its canal.”

The trial judge apparently thought that the third specification of negligence was included in the comprehensive language of the first specification, which read as follows:

“In failing to identify the course of the facial nerve in its course through the middle and inner left ear, and in proceeding to perform a radical mastoidectomy for removal of cholesteatoma with the knowledge that plaintiff had suffered from mastoiditis since infancy, that she had undergone mastoid surgery on two prior occasions, that she was chronically suffering from supperative otitis media, to detect the presence of chronic bone and tissue deterioration and changes, disorientation of organ structure, existence of improperly pneumatized bony areas, when he knew or should have known that the conditions of plaintiff’s left ear might cause disorientation of the surgeon in approaching or operating near, at and on the areas through, in or where the facial nerve travelled in the left ear, and in fading to avoid the course of the facial nerve during the surgery”.

We agree with the trial judge that the charge “in failing to avoid the course of the facial nerve” would include and permit proof of operating “in other than movements parallel to the facial nerve.” The withdrawal of specification 3 did not preclude plaintiff from introducing any of her evidence and we think had no effect on the deliberations of the jury. We find no merit in this assignment of error.

We have carefully examined the other assignments of error and find no merit in any of them. The judgment is affirmed.

① Dr. DeWeese, the ear surgeon who performed the corrective surgery on plaintiff’s injured nerve, testified:

“Q Now, Doctor, assuming that a surgeon performing a removal of cholesteatoma follows the ordinary standard of care in this community or a like community and follows the standard practices with that standard degree of care and — is it ordinarily expected an injury to the nerve will occur?

H: ‡ Hi $ ‡

“A No, it isn’t ordinarily expected.”

Dr. Holden, also an ear specialist, testified:

“Q If a surgeon exercises the degree of skill — degree of care and skill, degree of an ordinary surgeon in performance of this type of surgery, follows the procedures customary, does injury to the facial nerve ordinarily occur?

“A Ordinarily, no.”

② The expert testimony in Mayor, as quoted in the parties’ briefs, is very similar to that in the present case. In Mayor the defendant doctor testified:

“Q I take it, Doctor, that you and I can agree as a general proposition that one would not expect permanent partial paralysis from the neck down to result from the delivery of a second child following a spinal anesthetic when due care and proper practices are obtained?

“A That is correct.”

And plaintiff’s expert witness testified:

“Q Doctor, when due care and proper practices are followed, would permanent partial paralysis be expected to follow a spinal anesthetic and then childbirth?

“A No, it wouldn’t.”

Because of the manner in which we dispose of this case, it is not necessary to consider whether Mayor applied the proper standard. Neither the testimony nor the standard applied in that case indicate that the injury was more probably than not the result of negligence. See, e.g., Brannon v. Wood, 251 Or 349, 360-361, 444 P2d 558 (1968). The same may be said of the expert testimony in this case. Nevertheless, we think the implication of the quoted testimony in both cases is the same — that the fact the injury occurred is an indication that due care was not employed.

③ Four ear specialists, including defendant, testified to performing a combined total of about 2,200 middle ear surgeries. They reported five eases of temporary facial nerve injury resulting from bruising, heat caused by drilling, and postoperative swelling. Only one instance of direct injury to the facial nerve similar to that in the present case was mentioned by any of these witnesses; that injury was detected and repaired during surgery.

Dr. David DeWeese, head of the Department of Otolaryngology at the University of Oregon Medical School, testified that he had performed 1,500 to 2,000 middle ear surgeries; he was not asked how many of his own surgeries resulted in facial nerve injury. He testified that during his career he had performed about 35 operations to correct such injuries.

④ In a line of cases beginning in 1950 we took the position that the trial court is not required to instruct on res ipsa, Ritchie v. Thomas et al, 190 Or 95, 224 P2d 543 (1950), but that such an instruction may be given, Powell v. Moore, 228 Or 255, 364 P2d 1094 (1961), and that it is “preferable” to instruct on the doctrine in a case in which it applies. Centennial Mills, Inc. v. Benson, 234 Or 512, 383 P2d 103 (1963). Without citing these cases, however, we said in Waterway Terminals v. P. S. Lord, 242 Or 1, 53, 406 P2d 556, 13 ALR3d 1 (1965), that in a res ipsa case an instruction on the doctrine should be given if requested.

It appears that the position taken in the Waterway Terminals case is in accord with the modern decisions in other states. See, e.g., Ryan v. George L. Lilley Co., 121 Conn 26, 183 A 2 (1936); Merriman v. Kraft, 242 NE2d 526 (Ind App 1968) (dictum); Vespe v. DiMarco, 43 NJ 430, 204 A2d 874 (1964); Tuso v. Markey, 61 NM 77, 294 P2d 1102 (1956); George Foltis, Inc. v. City of New York, 287 NY 108, 38 NE2d 455 (1941); Fink v. New York Cent. R. Co., 144 Ohio St 1, 56 NE2d 456 (1944); Turk v. H. C. Prange Co., 18 Wisc 2d 547, 119 NW2d 365 (1963); North Central Gas Company v. Bloem, 376 P2d 382 (Wyo 1962) (dictum). Contra, Chase v. Beard, 55 Wash 2d 58, 346 P2d 315 (1959).

⑤ “That under the procedures customarily followed for performance of a radical mastoidectomy revision for the removal of cholesteatoma, injury and paralysis to the facial nerve and interference with the balance and equalibrium [sic] will'not occur ordinarily in the absence of negligence;”.

“You may, however, find that there arises an inference that the proximate cause of the occurrence or accident was some negligent conduct on the part of defendant, if you find from the evidence the following things:

* * * * *

“I instruct you that if you find by a preponderance of the evidence that the ‘accident’ complained of did occur and will not occur ordinarily when a surgeon has used the ordinary and standard degree of skill and care * * * and you further find that the defendant was in exclusive control and without any voluntary action or contribution of the plaintiff, and that the injury was caused by some instrumentality within the control of defendant, then I instruct you are entitled to find an inference of negligence chargable [sic] to the defendant.

* * * * *

“* * * By giving the instruction it means only that under the facts and circumstances of this case, the plaintiff has presented sufficient evidence which, if believed by you, would justify reasonable minds to infer that ‘some’ negligent act caused the injury or injuries during the surgery.” (Italics added.)

⑦ See Waterway Terminals v. P. S. Lord, 256 Or 361, 474 P2d 309, 313 (1970), and Sorenson v. Kribs, 82 Or 130, 145, 161 P 405 (1916) for discussions of the reasons applicable to each situation.