Tice v. Hall

MARTIN, Justice. The determinative issue on this appeal is whether Josie Phillips Tice is entitled to rely upon the doctrine of res ipsa loquitur to take her case to the jury on the question of the negligence of defendant Hall. We hold that the plaintiff is so entitled. The defendant’s motion for a directed verdict was erroneously granted. “Uniformly, in this and other courts, res ipsa loquitur has been applied to instances where foreign bodies, such as sponges, towels, needles, glass, etc., are introduced into the patient’s body during surgical operations and left there.” Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E. 2d 242, 245 (1941); Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285 (1932) (and cases cited *593 therein); Hyder v. Weilbaecher, 54 N.C. App. 287, 283 S.E. 2d 426 (1981), disc. rev. denied, 304 N.C. 727 (1982). Despite testimony of defendant and his expert concerning the scrupulous sponge counting and recounting procedures employed by the surgical team in this and other cases and the reliance by surgeons on the sponge count provided by the nurses in assistance, the well-settled law in this jurisdiction is and has been that “a surgeon is under a duty to remove all harmful and unnecessary foreign objects at the completion of the operation. Thus the presence of a foreign object raises an inference of lack of due care.” Hyder v. Weilbaecher, supra, 54 N.C. App. at 289, 283 S.E. 2d at 428. When a surgeon relies upon nurses or other attendants for accuracy in the removal of sponges from the body of his patient, he does so at his peril. By defendant’s own admission, the surgical sponge removed from the body of Mrs. Tice in November 1979 was left inside the surgical cavity during the September 1976 operation over which he presided as surgeon. If the facts of the case justify, as here, the application of the doctrine of res ipsa loquitur, the nature of the occurrence and the inference to be drawn supply the requisite degree of proof to carry the case to the jury without direct proof of negligence. Young v. Anchor Co., 239 N.C. 288, 79 S.E. 2d 785 (1954); Mitchell v. Saunders, supra, 219 N.C. 178, 13 S.E. 2d 242. Equally well settled is the effect of the presumption thus established of defendant’s negligence. The decisions are contrary to the proposition that any explanation which the defendant may see fit to furnish of matters which are supposed to be peculiarly within his knowledge is sufficient to rebut the prima facie case which res ipsa loquitur has made, or to repel the presumption, or, rather, inferences, which the jury may draw from it. It is still a matter for the jury. Mitchell v. Saunders, supra, 219 N.C. at 183, 13 S.E. 2d at 246. The defendant argues that the law of res ipsa loquitur as cited above has been superseded by the enactment of N.C.G.S. 90-21.12 which became effective 1 July 1976. The statute provides: *594 In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action. See Hunt v. Bradshaw, 242 N.C. 517, 88 S.E. 2d 762 (1955). Defendant interprets the above to be “the definitive law of medical malpractice in North Carolina” and therefore controlling in this case. Defendant further argues the incompatibility of the statute with the res ipsa doctrine in cases such as this: Assume that the applicable standard requires a search prior to closing the surgical incision and sponge counts as well. Assume further that all of the evidence shows that the operating surgeon made a meticulous search and that all sponge counts were reported to him as correct. At that point he has complied fully with the applicable standard of care. However, under the ruling of the Court of Appeals he could still be held responsible under res ipsa loquitur if a sponge were left behind, contrary to the statute. The defendant misapprehends the effect of the application of the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur and the statute are not in conflict. The statute establishes the standard of care in medical malpractice cases. The application of res ipsa loquitur allows the issue of whether defendant has complied with the statutory standard to be submitted to the jury for its determination. Although the application of the doctrine requires the submission of the issue to the jury, the burden remains upon the plaintiff to satisfy the jury that the defendant has failed to comply with the statutory standard. Defendant’s evidence that he complied with the statutory standard does not remove the case from the jury’s determination. As the trier of the facts, the jury remains free to accept or reject the testimony of defendant’s witnesses. Mitchell v. Saunders, supra, 219 N.C. 178, 13 S.E. 2d *595 242. See generally Comment, Medical Malpractice in North Carolina, 54 N.C.L. Rev. 1214 (1976). The trial court failed to properly apply the above rules in deciding defendant’s motion for a directed verdict. On such motion, plaintiffs evidence must be taken as true and considered in the light most favorable to plaintiff, giving her the benefit of all reasonable inferences to be drawn therefrom. Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974). The evidence of the defendant, whether contradicted or uncontradicted, cannot be considered by the court, except insofar as it may tend to support plaintiffs case. Mitchell v. Saunders, supra. The enactment of N.C.G.S. 90-21.12 did not alter the above rules. When they are applied to the facts of this appeal, plaintiff has established a case for the twelve. The Court of Appeals properly reversed the directed verdict for defendant. This holding is consistent with the legislative intent giving rise to N.C.G.S. 90-21.12. This statute and N.C.G.S. 90-21.11 were derived from recommendations of the Professional Liability Insurance Study Commission created by the 1975 General Assembly to study malpractice insurance rates and to submit a written report with recommended legislation. 1 1975 N.C. Sess. Laws ch. 623. See generally Comment, Statutory Standard of Care for North Carolina Health Care Providers, 1 Campbell L. Rev. Ill (1979). This commission specifically declined to recommend legislation on the doctrine of res ipsa loquitur in this state. See Report of the North Carolina Professional Liability Insurance Study Commission (1976). The Court of Appeals decision in this case is hereby Affirmed. Footnotes [1] The commission was composed of two insurance company representatives, two health professionals, and eight members of the General Assembly drawn equally from the House and Senate membership.