Harle v. Krchnak , 422 S.W.2d 810 ( 1967 )

COLEMAN, Justice.

This is an appeal from a judgment for the plaintiff entered in a medical malpractice suit. The trial court found that the facts establishing liability were undisputed and submitted only an issue on damages. The defendant objected to the charge on various grounds, including the- failure of the court to submit issues on negligence and proximate cause.

Appellee was kicked in the chest by a horse. He was hospitalized for a week and released. About a month later he appeared at the emergency room of the Bellville Hospital in poor condition. He was seen there by Dr. Roensch, who admitted him to the hospital. After a day or two he asked Dr. Harle, appellant, to see the patient. Dr. Harle made a diagnosis of a delayed rupture of the spleen and advised an immediate operation. Most of Dr. Harle’s practice is surgery, which is usually performed at the Bellville Hospital with the same group of hospital personnel and other physicians involved in the surgery on ap-pellee. Dr. Harle is a qualified surgeon, who has performed some 3,000 cases of surgery. Had surgery not been performed, appellee would have died.

The surgery was performed between the hours of 3:45 and 6:10 p. m. on December 28, 1963. Dr. Harle was assisted by Dr. Roensch and Dr. Neely, the anesthesiologist, together with hospital personnel consisting of two registered nurses and a licensed vocational nurse. Appellant made an incision from a point underneath the left rib cage at an angle to the midline, at the front of appellee’s abdomen. Upon entering the abdonminal cavity he found it filled with old and partly coagulated blood. It was necessary to remove this blood by hand at first. He then used a suction machine, and finally sponges. At first “lap” sponges, designed to soak up blood and about the size of wash cloths, but thinner, were used. These sponges are also used to pack away abdominal contents to give the surgeon an area of exposure. He also used smaller sponges called “four by fours,” which were folded up in a ring forcep, an instrument designed to hold these little sponges.

Appellant testified that the situation was in the nature of an emergency and highly unusual. While the number of sponges used was not recorded, he estimated that a total of between eight and twelve dozen were required, while in an ordinary operation, such as the removal of a gall bladder, only about three lap sponges and a dozen or two small sponges are used.

A large amount of blood is encountered in cases of delayed rupture of the spleen. The spleen is enclosed in a tough membrane. In this case the force of the kick received by appellee ruptured the spleen causing bleeding, but did not tear the membrane. Finally the pressure of the blood inside the membrane caused it to tear and the blood dropped into the abdominal cavity. This was an unusual case because the rupture of the membrane occurred after three weeks, whereas it ordinarily occurs within seven to ten days. Appellee was given three pints of blood by transfusion.

Appellant testified that ordinarily when .a blood vessel is cut, the bleeding can be controlled by clamping it off with a hemostat. In this case the spleen adhered to the diaphram. When it was removed, capillary oozing occurred and it was necessary to pack the bed of the spleen. However, it was not necessary to leave a sponge there. During the operation the bleeding was controlled satisfactorily.

A running count of the sponges is kept during the operation, but as appellant saw that he was getting close to the time to start closing the peritoneum lining, he indicated to the scrub nurse that he was getting ready to close and wanted a sponge count. She then notified the circulating nurse that she was ready for a sponge count. The scrub nurse counts the sponges on the table and knows how many she started with. The circulating nurse counts the sponges that have been used. They compared their figures and notified appellant that the count was correct. He relied on their count, although he testified that he did make a visual examination of the site and saw no sponge. Surgeons customarily rely on the sponge count made by the nurses and it is impractical for the operating surgeon to count the sponges personally.

After receiving the sponge count, appellant closed the incision. The operation was successful and the patient was removed to his room. Because of the unusually large number of sponges used, the nurses recounted the sponges and found one missing. When appellant was informed of this fact, he concluded that leaving the sponge in the patient an additional twelve hours would do him no harm, and because of the blood loss it would be advisable to wait to check the status of his circulatory system and to permit recovery from the surgery. The next morning he determined that it would do no harm to go back and remove the sponge. He told appellee that the sponge was missing and located it by means of x-ray. After securing appellee’s permission, he was taken to the operating room and given a general anesthetic. Appellant then removed enough stitches to permit him to insert his fingers and part of his hand and pull out the sponge. It was one of the lap sponges, which are 8" to 10" by 4" to 5", consisting of several thicknesses of cheesecloth. The incision was then reclosed. This entire procedure took about 45 minutes. Appellee thereafter had a good recovery.

Appellant testified that the procedure required for the removal of the sponge did not delay the healing process at all and did not contribute to any ultimate disability. He testified that it is ordinarily safe to resume almost any kind of occupation after three months from surgery such as this, but that the patient would be uncomfortable for periods up to a year. He testified with reference to appellee: “ * * The most I could say that he was uncomfortable twelve hours longer than he would have ordinarily been.” He further testified that he required hypos three days after the first operation, which was very good time, and that the second operation did not delay him in returning to work or affect his long term picture at all. He testified that if he had waited several days before removing the sponge, the hospital stay would have been prolonged by that number of days.

Appellee testified that he did not feel pain immediately following the operations, but that he did about a day or two later, and that he became sick and vomited after the second operation. He testified that he has continued to have pain; that when he eats he gets a pain in his side. “It just seems to be a hard knot. It just swells up in my side.” He hasn’t consulted any doctors about this condition. He offered no expert medical testimony at the trial other than the cross-examination of appellant.

Appellee remained in the hospital nine or ten days, a relatively short period of time for surgery of this type. No charge was made for the second operation. Appellant testified that he would expect that appellee would have remained in the hospital about as long without the second operation, “ * * * possibly at most he stayed fourteen hours longer than he would have.”

The failure of the trial court to submit issues on negligence and proximate cause may well have been based on certain language found in Moore v. Ivey, 264 S.W. 283 (Tex.Civ.App. — Galveston, 1924), reversed on other grounds Tex.Com.App., 277 S.W. 106. This case was submitted to a jury and findings were secured that the doctor was negligent in failing to remove a sponge before closing an incision, and that this failure was a proximate cause of injury to the patient. In answer to assignments of error challenging the sufficiency of the evidence to support the answers made by the jury, the court said: “Since the jury has found upon sufficient evidence that Dr. Moore left the sponge in Mrs. Ivey, we think that a further finding that such act constituted negligence on the part of Dr. Moore necessarily follows.”

This language was considered in Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App. — Waco, 1940), aff’d Barnard v. Thompson, 138 Tex. 277, “158 S.W.2d 486 (1942), where the court of civil appeals cited the case in support of this statement: “ * * * While there are decisions to the contrary, the apparent weight of authority is that a surgeon’s failure to remove a sponge before closing the incision is negligence as a matter of law.” This statement was not necessary to the decision in this case since it had not been tried on its merits, but had been dismissed as being barred by limitation.

The passage from Ruling Case Law quoted in Moore v. Ivey, supra, in support of the decision is incomplete as is indicated in the opinion. The wording deleted from the quotation reads: “Whether the particular act was negligent is for the jury to decide after considering the circumstances of the case.” See Spears v. McKinnon, 1925, 168 Ark. 357, 270 S.W. 524. If this court decided in Moore v. Ivey that the fact a surgeon fails to remove a sponge before closing an incision establishes negligence as a matter of law, we think the decision clearly contrary to the great weight of authority in the United States. Anno. 10 A.L.R.3d 9, Malpractice, Foreign Objects; Anno. 82 A.L.R.2d 1262, Malpractice, Res Ipsa Loquitur; Anno. 65 A.L.R. 1023, Surgical Operation, Malpractice.

It appears that the evidence stated in the opinion is sufficient to support the findings of fact made by the jury in Moore v. Ivey. It was not necessary for the court to reach the conclusion that negligence appeared as a matter of law in order to support the decision in view of the jury verdict.

Appellant testified that the sponge was left in appellee’s body by mistake. The testimony shows that he relied on his visual inspection and the nurses’ count. The jury might believe that his failure to see the sponge was excusable because of the large amount of blood encountered. It might find that he was justified in relying on the nurses to properly count the sponges under the circumstances of this case. An issue on negligence should have been submitted to the jury. Martin v. Eschelman, 33 S.W.2d 827 (Tex.Civ.App., Texarkana, 1930, error ref.); Note, 38 Michigan Law Review 560; Note, Wisconsin Law Review, 1964, p. 133; Note, 1 Baylor Law Review, p. 224; Note, 24 Texas Law Review, p. 515.

It is well established in Texas that the plaintiff in a malpractice case must prove that the injury of which he is complaining was proximately caused by the negligent act of the physician or surgeon. Ordinarily this requires expert testimony. Thomas v. Beckering, 391 S.W.2d 771 (Tex.Civ.App., Tyler, 1965, ref., n. r. e.). While it seems evident that appellee’s pain and suffering was extended for a period of fourteen hours and that this was proximately caused by the necessity for the second operation, appellant’s testimony is such as to create a question of fact for the jury. Gorsalitz v. Harris, 360 S.W.2d 574 (Tex.Civ.App., Houston, 1962); Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App., El Paso, 1964).

Appellant questions whether he could be held in damages for the conduct of the nurses in making an incorrect count of the sponges even though such conduct should be held negligence. It appears that most jurisdictions in this country hold the opr erating surgeon liable for the negligence of the nurses assisting him in the operation. McKinney v. Tromly, 386 S.W.2d 564, 12 A.L.R.3d 1011 (Tex.Civ.App., Tyler, 1964, ref., n. r. e.); Insurance Counsel Journal, Vol. 27, Captain of the Ship, p. 156 et seq.

Appellant urges that this Court should reverse the judgment of the trial court and here render a judgment that the appellee take nothing. This position is based on the proposition that no issues on liability were requested or submitted and as a consequence under Rule 279, Texas Rules of Civil Procedure, all grounds for recovery have been waived.

Appellee and the trial court relied on Moore v. Ivey, a case decided by this Court. We have disagreed with the interpretation widely given to the holding in this case. Under the circumstances we think justice will be better served by remanding the case for another trial as authorized by Rule 434, T.R.C.P. London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619 (1944).

Reversed and remanded.