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Surgery court cases
Surgery
Court
HOWARD NEWCOMB MORSE,* MAYERS District
VS.
Court of Appeal
LITOh
Chicago, Illinois
performed upon [the patient], a severance of that nerve would indicate that the doctor failed to exercise reasonable care in performing the operation. If there was sufficient evidence surgeon) severed indicating that . . . (the the nerve or that he otherwise faiIed to exercise reasonable care in performing the operation, then the case shouId have been aIIowed to go to the jury . . . there was sufficient evidence to permit the case to go to the jury-.”
of California
~16 P. 2d 351
This action was taken by a man and wife for damages predicated upon the aIIeged malpractice of a surgeon arising out of -a thyroidectomy performed upon the wife. The Superior Court of Los Angeles County, California, granted a judgment of non-suit in favor of the surgeon, and the pIaintiffs appeated. The District Court of Appeal of California reversed the judgment in favor of the surgeon entered by the lower court. The surgeon had removed a noduIe (“a growth within the thyroid gland,” as he characterized it) on the patient’s neck. He had been of the opinion that it was serious and required surgery since it was what he lesion.” After the termed a “ pre-malignant operation there was no movement of the Ieft voca1 cord. The plaintiffs based their claim of negligence on the part of the surgeon upon two theories: (I) he was negligent in his diagnosis that the operation was needed, and (2) he was negligent in performing the operation. In disposing of the first theory, the Court stated that whiIe “the noduIe which defendant . . . removed from [the patient’s] neck was not cancerous . . . there was no test known to determine in advance whether or not the growth was cancerous until it was taken out.” Of the other theory, the Court decIared: “ In support of their second theory of negligence plaintiffs introduced extensive evidence tending to show that . . . (the surgeon) might have scverecl the recurrent IaryngeaI nerve during the operation. Since all the medical experts w’ere of the opinion that this nerve should not be severed during the type of operation * Counseflor
Cases
DAVIS
VS.
Supreme
BONEBRAKE
Court of Colorado
_?I? P. 2d 982
This was a maIpractice action in which the pIaintiff obtained a favorabIe verdict against two surgeons who sought reversa1 of an adverse judgment rendered in the District Court of Denver County, CoIorado. According to the compIaint, a surgica1 sponge or insoIubIe pack had been Ieft in the pIaintiff’s abdomen after the performance of a hysterectomy. The case is both interesting and important because it deaIs with the fraudulent concealment by the surgeons of the presence of the sponge left in the body of the patient, and the degree of evidence sufficient to prove frauduIent concealment. The Court expIained: “Testimony to the effect that pIaintiff was very sick after the August operation; that a number of doctors examined her; that she was again subjected to surgery in the identica1 anatomical area without discIosure at the time of why it was performed; that she was toId afterwards the necessity for the second operation would in the future be divulged to her; that she sought information from the doctors, and on two occasions from . . . (the instrument the exigency requiring concerning nurse), the operation; and that on her second quest
at Law, Member of the Bar of the Supreme Court of the United States of America. 611
American
Journal
of Surgery,
Volume 06.October, rvrX
Morse nurse) inin October . . . (the instrument formed her that the doctors removed a sponge from her abdomen, presented a fact situation for the jury to consider, weigh and determine. A question of frauduIent concealment evoIves from this testimony.” If the filing of the malpractice action would ordinariIy have been too Iate so as to be outIawed by the statute of Iimitations, proof of fraudulent concealment has the effect of tolling (suspending) the statute of limitations so that the time period within which suit must
be brought does not begin to run until the patient has knowledge of the foreign object in her body. The Court heId that “beIief” on the part of the patient that a foreign object had been left by the surgeon in her body did not constitute “knowledge” so as to prevent the tolling of the statute of Iimitations. However, the Court reversed the judgment of the nisi prim court on other grounds not germane to this discussion, and remanded the case with directions to -the lower court for a new trial.
612
Court
HOWARD NEWCOMB MORSE,* MAYERS District
VS.
Court of Appeal
LITOh
Chicago, Illinois
performed upon [the patient], a severance of that nerve would indicate that the doctor failed to exercise reasonable care in performing the operation. If there was sufficient evidence surgeon) severed indicating that . . . (the the nerve or that he otherwise faiIed to exercise reasonable care in performing the operation, then the case shouId have been aIIowed to go to the jury . . . there was sufficient evidence to permit the case to go to the jury-.”
of California
~16 P. 2d 351
This action was taken by a man and wife for damages predicated upon the aIIeged malpractice of a surgeon arising out of -a thyroidectomy performed upon the wife. The Superior Court of Los Angeles County, California, granted a judgment of non-suit in favor of the surgeon, and the pIaintiffs appeated. The District Court of Appeal of California reversed the judgment in favor of the surgeon entered by the lower court. The surgeon had removed a noduIe (“a growth within the thyroid gland,” as he characterized it) on the patient’s neck. He had been of the opinion that it was serious and required surgery since it was what he lesion.” After the termed a “ pre-malignant operation there was no movement of the Ieft voca1 cord. The plaintiffs based their claim of negligence on the part of the surgeon upon two theories: (I) he was negligent in his diagnosis that the operation was needed, and (2) he was negligent in performing the operation. In disposing of the first theory, the Court stated that whiIe “the noduIe which defendant . . . removed from [the patient’s] neck was not cancerous . . . there was no test known to determine in advance whether or not the growth was cancerous until it was taken out.” Of the other theory, the Court decIared: “ In support of their second theory of negligence plaintiffs introduced extensive evidence tending to show that . . . (the surgeon) might have scverecl the recurrent IaryngeaI nerve during the operation. Since all the medical experts w’ere of the opinion that this nerve should not be severed during the type of operation * Counseflor
Cases
DAVIS
VS.
Supreme
BONEBRAKE
Court of Colorado
_?I? P. 2d 982
This was a maIpractice action in which the pIaintiff obtained a favorabIe verdict against two surgeons who sought reversa1 of an adverse judgment rendered in the District Court of Denver County, CoIorado. According to the compIaint, a surgica1 sponge or insoIubIe pack had been Ieft in the pIaintiff’s abdomen after the performance of a hysterectomy. The case is both interesting and important because it deaIs with the fraudulent concealment by the surgeons of the presence of the sponge left in the body of the patient, and the degree of evidence sufficient to prove frauduIent concealment. The Court expIained: “Testimony to the effect that pIaintiff was very sick after the August operation; that a number of doctors examined her; that she was again subjected to surgery in the identica1 anatomical area without discIosure at the time of why it was performed; that she was toId afterwards the necessity for the second operation would in the future be divulged to her; that she sought information from the doctors, and on two occasions from . . . (the instrument the exigency requiring concerning nurse), the operation; and that on her second quest
at Law, Member of the Bar of the Supreme Court of the United States of America. 611
American
Journal
of Surgery,
Volume 06.October, rvrX
Morse nurse) inin October . . . (the instrument formed her that the doctors removed a sponge from her abdomen, presented a fact situation for the jury to consider, weigh and determine. A question of frauduIent concealment evoIves from this testimony.” If the filing of the malpractice action would ordinariIy have been too Iate so as to be outIawed by the statute of Iimitations, proof of fraudulent concealment has the effect of tolling (suspending) the statute of limitations so that the time period within which suit must
be brought does not begin to run until the patient has knowledge of the foreign object in her body. The Court heId that “beIief” on the part of the patient that a foreign object had been left by the surgeon in her body did not constitute “knowledge” so as to prevent the tolling of the statute of Iimitations. However, the Court reversed the judgment of the nisi prim court on other grounds not germane to this discussion, and remanded the case with directions to -the lower court for a new trial.
612