Paro v. Carter

Jones, J. Although the testimony in this case was quite voluminous, the only issue was whether on the 19th day of March, 1918, the defendant negligently failed to use due care and skill by failing to remove gauze packages and bandages which he had used in the operation. There is no claim of any negligence in the former operation of December, 1913, or in subsequent treatment prior to March, 1918. Under the pleadings and ruling of the court there is no issue before us as to negligence subsequent to March, 1918. It is conceded by both parties that there was no gauze in — 126 — the abdominal wall prior to the operation in question. It seems reasonably clear that no surgeon or physician left any such gauze in the body of Miss Paro between March, 1918, and May, 1919, when it was first discovered. It is claimed by plaintiff’s counsel that the evidence shows that the gauze could not have entered through any other agency than the defendant. We have been somewhat surprised at the number of cases which have reached the courts of last resort where negligence of the same character in such operations has been claimed. In many of these cases defendants have been held liable for damages. In some of them the testimony was clear that the substance had been left in the body of the patient by the surgeon or some assistant; in others the defendant relied principally upon some custom or system of counting the gauzes or sponges by nurses; in others that the foreign substance could not have entered the body of the patient except through the agency of the defendant. In the present case defendant’s counsel claimed that there was no evidence to uphold a finding that defendant left any gauze or sponges in the abdomen of the patient and claim that the testimony affirmatively and clearly shows this fact. Except in the respect above indicated there is no claim of negligence, ancj. it would serve no useful purpose to detail the methods by which the surgical operation was conducted. It suffices to state that the evidence shows that it was carried on in the most approved method, unless the evidence establishes that the gauze was not removed as claimed. The defendant called to his assistance another practitioner of long experience and he had the aid of trained nurses of the hospital. The defense did not rely merely on a system or custom as to the mode of counting the sponges, but two of the nurses and the defendant testified from their recollection that an accurate count was made of them and that those left after the operation corresponded to the number used. The testimony convinces us that the kind of gauze taken from the — 127 — patient’s body was not used at tlie hospital at the time of the operation. On this subject considerable testimony was given, and that of the nui'ses was positive and uncontra-dicted. There is a singular feature of this case which distinguishes it from those relied on by appellant’s counsel. The testimony is undisputed that Miss Paro was an hysteric and this was conceded by her counsel. This fact explains many of the unusual circumstances marking the history of her case during a period of five years. Defendant called as witnesses well known specialists from medical colleges. One of them, Dr. Moyer, said: “My conclusion was that she was suffering from hysteria. She had a partial paralysis of her left leg and left arm, which was an hysterical condition and not a true paralysis, but an inability to move her arm and elbow only to a limited extent voluntarily. . . . Hysterical paralysis is not a disease in the ordinary use of the term. It is a disorder of conduct; essentially a mental condition in which the mind controls the body, due to an action of the will and found only in people of defective personality. ... I have been in court during the testimony thus far and am familiar-with the testimony of the operation and the failure of her abdomen to heal. That condition could not have been a cause of hysterical paralysis. No physical causes ever cause hysteria. It is a mental process pure and simple. ... If this young woman got an emotion, or desire so it would be better for her not to be paralyzed, she certainly would recover.” Several physicians testified, without contradiction, from their own experience that it is a recognized fact that hysterical persons will and do manipulate their wounds and interfere with their recovery, and there was testimony which was not rebutted that such persons sometimes place substances in their own wounds. For a considerable period after the operation in question there were daily dressings of the wound by the patient’s mother, and gauze obtained from the drug stores was used for that purpose. Dr. Minahan testified that when he performed the operation in December, 1919, he. — 128 — “removed a piece of gauze and a thick, pasty material about one and one-half to two inches long. It lay in the bóttom of the connection between those two holes, right in the muscle of the abdominal wall. I did not go into the peritoneal cavity.” This gauze was incased in a thick, pasty material. The only explanation of this condition which is suggested is that Miss Paro had been advised by some person called a doctor, but not one'in fact, to rub a salve on her abdomen and that it would loosen the adhesions, and that she had tried the experiment. The smallest pieces of gauze used in the operation were thirty-six by eighteen inches, while the five pieces taken from the body of Miss Paro were small and very tough and could not easily have been broken off or detached. There was other positive testimony, which it does not seem necessary to recite, tending to show the extreme improbability of the claim that the material found in the body of the patient in May, 1919, was left there by defendant in March, 1918. . It is argued by counsel for respondent that, even if the sponge was left in the patient’s abdomen by defendant, he is not liable in damages if he followed the requirements of approved practice in his profession in his community, and if he followed the usual custom as to the count. We are not disposed to accept this view. Although testimony of the usual practice and custom among skilled practitioners is competent and may have an important bearing, it is not conclusive in such a case as this that there has been no negligence. From the time the operation begins until it is closed and all foreign' substances are removed due care and skill should be exercised by the surgeon. Walker v. Holbrook, 130 Minn. 106, 153 N. W. 305; Palmer v. Humiston, 87 Ohio St. 401, 101 N. E. 283; Akridge v. Noble, 114 Ga. 949, 41 S. E. 78; Davis v. Kerr, 239 Pa. St. 351, 86 Atl. 1007. But in the case before us the defense does not rest on — 129 — proof that defendant followed the most approved practice in ascertaining whether all gauze or sponges had been removed, and we are forced to the conclusion that plaintiff failed to prove by credible evidence the fact vital to her success. At the close of the trial, on a motion for a directed verdict for the defendant, the court expressed the view that the motion was well taken, but concluded to take the verdict of the jury without prejudice 'to renew the motion. When the jury disagreed the motion was granted. It is the well settled rule under such circumstances that due weight should be given to the decision of the trial court, and that when “the trial judge 'rules, either on motion for nonsuit, motion for a directed verdict, or motion to set aside the verdict, that there is or is not sufficient evidence upon a given question to take the case to the jury, the trial court has such superior advantages for judging of the weight of the testimony and its relevancy and effect that this court should not disturb the decision merely because, on a doubtful balancing of probabilities, the mind inclines slightly against the decision, but only when the mind is clearly convinced that the conclusion of the trial judge is wrong.” Slam v. Lake Superior T. & T. R. Co. 152 Wis. 426, 432, 140 N. W. 30; Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573; Jeffers v. G. B. & W. R. Co. 148 Wis. 315, 134 N. W. 900; Rogers v. Brown, 143 Wis. 472, 128 N. W. 64. It is our conclusion that on the merits the decision of the trial court should not be disturbed. An exception was taken to rulings of the court as to certain questions of evidence. A witness was asked whether she picked up a piece of gauze immediately after the operation by Dr. Minahan, and it was stated by plaintiff’s counsel that he would connect it up with gauze that came from plaintiff, but no proof showing such connection was offered. The rejection of the testimony was not error. Another exception was taken to the rejection of testi — 130 — mony, offered by plaintiff on cross-examination of an expert, as to the proper mode of drainage subsequent to the operation. This was irrelevant to the only issue in the case, namely, whether the gauze had been removed, and was properly rejected. By the Court. — Judgment affirmed.