Nixdorf v. Hicken

The plaintiff appeals the district court’s granting of a directed verdict in favor of the defendants. Following the preservation of the plaintiff’s case the defendants moved pursuant to Rule 50 for a directed verdict. The court granted the motion and entered its judgment thereon. We reverse and remand the action for a new trial. All statutory references are to Utah Code Annotated, 1953, as amended.

For a period of approximately ten years, the plaintiff, Elsa H. Nixdorf, suffered from a cystocele and rectocele. In June 1964 she contacted the defendant, Dr. N. Frederick Hicken, concerning the alleviation of these problems. Although Dr. Hicken initially counseled the plaintiff on the necessity of a hysterectomy, during the subsequent operation which he performed on June 5,1964, he elected instead to merely repair the cystocele and rectocele and amputate a portion of the plaintiff’s cervix.

The repair of the cystocele was completed without incident. However, during the repair of the rectocele one of the curved cutting needles used to suture the torn diaphragm became disengaged from the nee-dleholder. Although the doctor realized the needle remained in the operating site, his attempts to locate it by palpating the suspect area were unsuccessful and the operation was completed without recovery of the lost needle.

Following the operation, the plaintiff remained under the care of Dr. Hicken until his retirement on July 1, 1970, when his partner, Dr. A. James McAllister, assumed the plaintiff as his patient. Notwithstanding the plaintiff’s repeated complaints of pain in the pelvic-abdominal area, Dr. Hick-en and Dr. McAllister never informed her of the presence of the needle. In fact, the plaintiff had no knowledge of the presence of the needle until 1976 when Dr. Robert Maddock, who she consulted because of lower abdominal pain, revealed its presence to her.

At trial the plaintiff averred the defendant Hicken was negligent in the performance of the 1964 operation and because of his negligence, she has incurred certain damages, e. g., pain and suffering and related medical expenses. Plaintiff also averred the defendants acted negligently in not informing her of the presence of the needle.

At the conclusion of the plaintiff’s case, the defendants moved pursuant to Rule 50, Utah Rules of Civil Procedure, for a directed verdict on the grounds the evidence presented by the plaintiff was insufficient as a matter of law to create a jury question on the defendants’ negligence. The trial judge granted this motion on the basis of the plaintiff’s failure to introduce expert testimony to establish the applicable standards of care.

In malpractice actions generally the physician is held to the standard of skill employed by his contemporaries in the same or similar communities. Therefore, before the plaintiff can prevail in a medical malpractice action, he must establish both the standard of care required of the defendant as a practicing physician in the community and the defendant’s failure to employ that standard.

In the majority of medical malpractice cases the plaintiff must introduce expert testimony to establish this standard of care. Expert testimony is required because the nature of the profession removes the particularities of its practice from the knowledge and understanding of the average citizen.

However, this Court has recognized certain exceptions to the general rule requiring expert testimony. Specifically, expert testimony is unnecessary to establish the standard of care owed the plaintiff where the propriety of the treatment received is within the common knowledge and experience of the layman. The loss of a surgical instrument or other paraphernalia, in the operating site, exemplifies this type of treatment. We explained in Fredrickson v. Maw:

Whether a surgical operation was unskillfully or skillfully performed is a scientific question. If, however, a surgeon should lose the instrument with which he operates in the incision . . ., it would seem as a matter of common sense that scientific opinion could throw little light on the subject.

The loss of the surgical cutting needle by Hicken falls squarely within the perimeters of this exception to the general rule. The guidance provided by expert testimony is unnecessary in this situation and, therefore, expert testimony should not have been required to establish the professional standard of care under the facts of the present case.

Concomitant with the establishment of the community standard is the plaintiff’s proof that the defendant failed to exercise the level of skill this standard requires.

When the appropriate evidentiary basis is presented a plaintiff may employ the doctrine of res ipsa loquitur to carry this burden. This doctrine establishes an inference of negligence from the circumstances incident to the operation. It is a procedural rather than substantive rule of law which carries the plaintiff past a motion for nonsuit where the circumstantial evidence introduced by the plaintiff is sufficient to support the application of the doctrine and its inference of negligence.

We delineated the evidentiary foundation which the plaintiff must establish before employing the doctrine of res ipsa loquitur in Moore v. James when we stated:

The rule ... is applicable when: (1) The accident was of a kind which, in the ordinary course of events, would not have happened had the defendant used due care, (2) the instrument or thing causing the injury was at the time of the accident under the management and control of the defendant, and (3) the accident happened irrespective of any participation at the time by the plaintiff.

The establishment of this evidentia-ry basis presents a peculiar problem to a plaintiff in a medical malpractice case because of the necessity of showing what the usual outcome of a medical procedure would be when the required due care is employed. Generally, this requires the introduction of expert medical testimony to establish the fact the outcome is more likely the result of negligence than some other cause. This testimony would be necessary to provide the evidentiary basis from which the jury could conclude the result is more probably than not due to the negligence of the attending physician.

However, in certain situations, the medical procedure is so common or the outcome so affronts our notions of medical propriety that expert testimony is not required to establish what would occur in the ordinary course of events. In this type of situation the plaintiff can rely on the common knowledge and understanding of laymen to establish this element.

Therefore, when the instrumentality causing the injury is in the exclusive control of the defendant, and the plaintiff does not participate in the acts causing the injury, then negligence may be inferred from the injury alone if: (1) the cause of injury is so obviously negligent that negligence may be inferred as a matter of law; (2) people would know from common experience the result would not have happened without negligence; or (3) when a physician testifies bad results would not have occurred if proper care had been used.

While we will not say the act of the defendant in losing the needle from the needleholder was negligent as a matter of law, the bad result, i. e., the needle present in the body of the plaintiff, is such that people would know from common knowledge and experience it is more probably than not the result of negligence. Therefore, in the present case, expert testimony was not required to establish this element of the doctrine of res ipsa loquitur.

The evidence presented at trial indicates the instrumentality which caused the bad result was in the exclusive control of the defendant at the time of the accident. Furthermore, the plaintiff was under a general anesthetic and could not participate or contribute to the act causing the injury. These facts when combined with the nature of the accident provide a sufficient evidentiary foundation for the application of the res ipsa loquitur doctrine in this case. The application of the doctrine provides a rebuttable inference of negligence which will carry the plaintiffs case past the motion for nonsuit.

. Therefore, under the facts of this case, expert testimony was not required to establish the negligence of the defendant and the trial court erred in granting a directed verdict against the plaintiff because of the lack of that testimony.

The trial court also erred in not submitting to the jury the plaintiff’s second cause of action, concerning the doctor’s failure to disclose the presence of the needle. The relationship between a doctor and his patient creates a duty in the physician to disclose to his patient any material information concerning the patient’s physical condition. This duty to inform stems from the fiduciary nature of the relationship and the patient’s right to determine what shall or shall not be done with his body.

The scope of the duty is defined by the materiality of the information in the decisional process of an ordinary individual. If a reasonable person in the position of the plaintiff would consider the information important in choosing a course of treatment then the information is material and disclosure required.

Once the duty to disclose certain information is established, then the physician’s total breach of that duty, as found in the present case, presents to the jury the question of what damages were proximately caused by the breach. Where the physician fails to disclose to his patient any information concerning a material fact, there is no question of skill and judgment, no question of practice beyond the knowledge of laymen which must be established through expert testimony. To borrow Justice Wiest’s much quoted phrase from Ballance even the “merest tyro” would know the nondisclosure was improper.

Damages which may be shown to follow as a proximate cause of the nondisclosure include reasonable charges for discovery and removal of the needle and monetary compensation for the mental anguish following the realization of the needle’s presence.

CROCKETT, WILKINS and HALL, JJ„ concur.

. These terms refer to the bladder and rectum respectively and denominate a condition in which these organs protrude from the abdominal cavity through a rupture in the pelvic diaphragm and into the vaginal area.

. The other defendant, Dr. James McAllister, was a partner of Dr. Hicken at the time of the operation and following Dr. Hicken’s retirement assumed the plaintiff as a patient.

. Although Dr. McAllister was not present at the original operation, the plaintiffs files contain the Operation Report which under the heading “Complications” states: “A small curved cutting needle was broken while repairing the rectocele and is apparently lying in the levator ani or the gluteus muscle or fascia on the left side . . . ”

. Dr. Maddock became aware of the needle from x-rays taken of the area for use in his care of the plaintiff.

. See Marsh v. Pemberton, 10 Utah 2d 40, 347 P.2d 1108 (1959).

. Fredrickson v. Maw, 119 Utah 385, 388, 227 P.2d 772, 773 (1951); quoting from Wharton v. Warner, 75 Wash. 470, 135 P. 235, 237 (1913); see also Lipman v. Lustig, 346 Mass. 182, 190 N.E.2d 675 (1963); Taylor v. Milton, 353 Mich. 421, 92 N.W.2d 57 (1958); Ballance v. Dunnington, 241 Mich. 383, 217 N.W. 329 (1928).

. The trial court appeared to have overlooked the initial breach of the defendant’s duty, i. e., the loss of the needle. The defendant’s realization of the absence of the needle and his attempt to retrieve it does not obviate the consequences of its loss. Whether or not the defendant acted negligently in leaving the needle in the person of the plaintiff represents a separate issue. The plaintiffs failure to present a prima facie case on that issue does not eliminate the defendant’s responsibility for the initial loss.

. See Talbot v. Dr. W. H. Groves’ Latter-Day Saints Hospital, 21 Utah 2d 73, 440 P.2d 872 (1968).

. Joseph v. Dr. W. H. Groves’ Latter-Day Saints Hospital, 10 Utah 2d 94, 348 P.2d 935 (1960). In Joseph, this Court set forth the basis for the application of res ipsa loquitur in malpractice actions when we explained: “The doctrine of res ipsa loquitur springs from the very practical process of drawing logical conclusions from circumstantial evidence. Its purpose is to permit one who suffers injury from something under the control of another, which ordinarily would not cause the injury except for the other’s negligence, to present his grievance to a court or jury on the basis of the reasonable inferences to be drawn from such facts, even though he may be unable to present direct evidence of the other’s negligence.” 348 P.2d at 936.

. Turner v. Willis, 59 Hawaii 319, 582 P.2d 710 (1978).

. Moore v. James, 5 Utah 2d 91, 96, 297 P.2d 221, 224 (1956).

. See Talbot, supra note 8, 440 P.2d at 873.

. This Court has previously recognized this exception in Fredrickson v. Maw, supra note 6, 227 P.2d at 773, where we quoted: “So, in this case, where a surgeon loses a metallic spring in the body of his patient, and fails to discover and remove it, it would seem that a jury would have abundant justification for inferring negligence without the aid of expert testimony.” (Quoting from Wharton v. Warner, supra note 6, 135 P. at 237) Some courts limit the application of the doctrine of res ipsa loquitur exclusively to this type of situation. See Swanson v. Hill, 166 F.Supp. 296 (N.D.N.D.1958). This appears to be a strict application of the doctrine requiring the result to “speak for itself’ without the aid of any other proof. Thus, the application of the doctrine has sometimes been explained by courts as eliminating the necessity of the plaintiffs procurement of expert testimony in the initial stages of proof. See Dietze v. King, 184 F.Supp. 944, 946 (E.D.Va.1960).

. See Tomei v. Henning, 67 Cal.2d 319, 62 Cal.Rptr. 9, 431 P.2d 633 (1967).

. See Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (1974), approved and adapted, 85 Wash.2d 151, 530 P.2d 334 (1975); This case must be distinguished from the situations in which the needle is broken during the suturing. The malfunctioning of the surgical instruments presents an intervening cause for the accident beyond the control of the physician. In that situation the doctrine of res ipsa loquitur may still be applicable because the result is more probably than not the result of negligence, but the intervening cause may be used as a defense against the plaintiff’s proof of proximate causation. The present situation is more analogous to the loss of whole instruments and other paraphernalia in the course of the operation.

. See Moore v. James, supra note 11, 297 P.2d at 224; The defendant may introduce evidence to rebut the inference of negligence established by the application of the doctrine. While the defendant may introduce conflicting medical testimony on the cause of the accident this should not be relied upon by the trial judge to remove the case from the jury’s consideration. Rather, this establishes a conflict in the evidence which it is the jury’s duty to resolve.

. The plaintiff also has the burden of proving the negligence of the defendant was the proximate cause of the injury. This proof requires some expert testimony in medical malpractice cases. Anderson v. Nixon, 104 Utah 262, 139 P.2d 216 (1943). In the present case the defendant, an acknowledged expert, testified the position of the needle was such that it could produce pain. Although there is contradictory evidence that the pain the plaintiff suffered was due to other medical abnormalities the testimony of the defendant is sufficient to render causation a question of fact to be determined by the jury. As we explained in Anderson, . . it is not necessary that the proximate cause of an injury sustained through the negligence of a doctor be proved with exactitude. . . and “If the injury sustained could be attributed to two or more causes, one of which was the negligence of the doctor, it would be a question for the jury to determine which was the proximate cause of the injury.” Id. 139 P.2d at 220. See also Forrest v. Eason, 123 Utah 610, 261 P.2d 178 (1953); 13 A.L.R.2d, Proximate Causation — Malpractice, Actions, Section 2, page 22.

. Emmett v. Eastern Dispensary and Casualty Hospital, 396 F.2d 931 (D.C. Cir. 1967) (“We find in the fiducial qualities of that relationship [between physician and patient] the physician’s duty to reveal to the patient that which in his best interests it is important that he should know.” 396 F.2d at 935.)

. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914); see also Miller v. Kennedy, supra note 15, 522 P.2d at 860. In Miller the court explained, “The patient is entitled to rely upon the physician to tell him what he needs to know about the condition of his own body. The patient has the right to chart his own destiny, and the doctor must supply the patient with the material facts the patient will need in order to intelligently chart that destiny with dignity.”

. The members of the jury can discern what a reasonable man would consider material information in a decision concerning his well being. Although there may be certain situations, such as the patient’s incompetence or specific medical reasons for withholding material information where expert testimony may establish a defense for nondisclosure, it is not essential for the plaintiffs establishment of a prima facie case. See Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972). (“The decision as to what is or is not material is a human judgment, in our opinion, which does not necessarily require the assistance of the medical profession.” 295 A.2d at 688.) This objective approach has been accepted by some courts in the context of informed consent malpractice actions. See Miller v. Kennedy, supra note 15, 522 P.2d at 860. While analogy to the informed consent doctrine is helpful it is not dispositive. The present situation differs from that found in the informed consent context and our approach to it must reflect this difference. See Canterbury v. Spence, 464 F.2d 772, 782 (D.C. Cir. 1972).

. In Wilkinson, supra note 20, 295 A.2d at 686, the court explained: “As explicated in Collins v. Meeker, 198 Kan. 390, 424 P.2d 488 (1967), the Natanson [Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960)] rule provides . that where a physician is silent and makes no disclosure whatever, he has failed in the duty owed to the patient and the patient is not required to produce expert testimony to show that the doctor’s failure was contrary to accepted medical practice . . . .”

.In determining the existence and the extent of a physician’s duty to disclose in each particular situation, the jury need not depend exclusively on expert testimony. In nondisclosure cases the jury is not invariably functioning in an area of such technical complexity that it is bound to medical custom, as established through expert testimony, as an inexorable application of the community standard of reasonable care. Canterbury v. Spence, 464 F.2d 772, 785 (D.C. Cir. 1972). In Canterbury the court in discussing the basis of disclosure required in the informed consent context explained: “Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to abrogate' the decision on revelation to the physician alone. Respect for the patient’s right of self determination on particular therapy demands a standard set by law for physicians rather than one which the physicians may or may not impose upon themselves.” 464 F.2d at 784.

. Ballance v. Dunnington, supra note 6, 217 N.W. at 330.

. See Taylor v. Milton, supra note 6; the present factual situation could also be used to establish a cause of action in fraudulent concealment. Where a physician has knowledge of a fact concerning the patient’s physical condition which is material to that patient and he fails to disclose it the confidence relationship between them creates a duty to disclose which may render his silence fraudulent. See Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940).

. See Jackson v. United States, 182 F.Supp. 907 (D.C.Md.1960); Houston Clinic v. Busch, 64 S.W.2d 1103 (Tex.Civ.App.1933).