ALES v. RYAN.*
As administrator of the estate of Rose Carauddo, the plaintiff has appealed from a judgment in favor of the defendant in an action brought to recover damages for alleged malpractice which the plaintiff claimed caused the death of his decedent. The points presented involve the soundness of certain instructions. Any facts necessary to a complete understanding of the record will be stated as the occasion may require.
The trial court, at the request of the defendant, instructed the jury as follows: “The mere fact that a sponge was found in the abdomen of the deceased will not support a verdict against the defendant Fred S. Ryan in this case, for, in order for plaintiff to recover against Fred S. Ryan, it must be established that a sponge was left in her abdomen due to the failure of defendant Fred S. Ryan to exercise ordinary care.” The plaintiff contends that the alleged negligence in the instant case was negligence per se and therefore that the above instruction was an erroneous statement of the law. He cites and relies on McCormick v. Jones, 152 Wash. 508, 278 P. 181, 65 A.L.R. 1019; Moore v. Ivey (Tex.Civ.App.) 264 S.W. 283; Saucier v. Ross, 112 Miss. 306, 73 So. 49; Harris v. Fall (C.C.A.) 177 F. 79, 27 L.R.A.(N.S.) 1174; 21 R.C.L. 388. The defendant distinguishes each of those cases on the facts that were before the court. We cannot say he does not satisfactorily do so. But conceding, solely for the purposes of this case, that the cases cited by the plaintiff support his contention, it must also be conceded that there are well-considered cases holding otherwise. In Cassingham v. Berry, 150 P. 139, the Supreme Court of Oklahoma was considering a case in which an instruction of the same import was given by the trial court. The plaintiff in that case made the same contention which this plaintiff now makes. In Cassingham v. Berry, 150 P. 139, on page 141, the court said: “The basis and gist of this action was not the result of the operation, but negligence in the performance of it. If there was no negligence in the performance of the operation, then there was no cause of action, and could be no recovery; if there was negligence in the performance of the operation, then a recovery could be had. Whether or not the defendant exercised that degree of care in performing the operation that the law imposed upon him was the paramount question, and the test of the rights of the parties. And we think the defendant was entitled to this instruction, and, when taken in connection with the other instructions, that it did not prejudice the rights of the plaintiffs.” To the same effect see Rayburn v. Day, 126 Or. 135, 268 P. 1002, 59 A.L.R. 1062; Roark v. Peters, 162 La. 111, 110 So. 106; Guell v. Tenney, 262 Mass. 54, 159 N.E. 451; Jackson v. Hansard, 45 Wyo. 201, 17 P.(2d) 659. The last case cited was decided by the Supreme Court of Wyoming in 1933. It is a careful review of the authorities down to date. Having made that review, 45 Wyo. 201, 17 P.(2d) 659, on page 664, the court said: “And we think that under the evidence in this case as outlined above, the question of due care was not a question of law, but was one for the jury to decide, subject, of course, to the ordinary right of the trial judge in such cases.” The weight of authority is to the same effect. Note 65 A.L.R. 1028. The trial court did not err in giving the instruction complained of.
Upon the request of the defendant the trial court instructed the jury as follows: “The burden is upon the plaintiff to prove negligence on the part of defendant Fred S. Ryan, and it must be proved by a preponderance of the evidence. The law presumes that defendant Fred S. Ryan was free from negligence and the mere fact that a sponge was left in the abdomen of Rose Carauddo raises no presumption that it was left there by defendant Fred S. Ryan, or that it was left there by reason of his negligence. And if it is just as probable that said sponge was left there by the negligence of another, or by reason of the mistake in the sponge count, or even by Fred S. Ryan under circumstances which would not amount to negligence on his part, then your verdict must be in favor of defendant Fred S. Ryan.” Having quoted that instruction, the plaintiff contends that it was error because the doctrine of res ipsa loquitur applied to the instant case. But the instruction complained of was not addressed to the application of that doctrine. That subject was clearly and fully presented by instruction No. 15. The instruction complained of was but a statement of certain statutory rules which obtain whether the case is one in which the doctrine of res ipsa loquitur is, or is not, applicable. The plaintiff confuses the burden of proof with the burden of going forward with the proof. 45 C.J. 1219; 10 Cal.Jur. 783; Bonneau v. North Shore R. R. Co., 152 Cal. 406, 412, 93 P. 106, 125 Am.St.Rep. 68.
It is next contended that the trial court erred because it refused to give an instruction to the effect that the defendant, even though he acted gratuitously, was bound to exercise ordinary care and skill. Whether the instruction was correct or incorrect, the subject-matter was fully covered by an instruction that was given and which was as follows: “The fact that a physician or surgeon renders his services gratuitously does not absolve him from the duty to use reasonable and ordinary care, skill and diligence.”
The alleged act of malpractice complained of occurred while performing an operation at the county hospital of Santa Clara county, which is located in San Jose. The record does not disclose that defendant had any authority at the hospital except as stated in this opinion. Dr. D. R. Wilson, the medical director of the county hospital, has general charge of operations to be performed at the hospital and designates the individual who is to perform the operation. He diagnosed the decedent's case, recommended the operation, and summoned Dr. Ryan to perform it. Dr. Ayers, an interne of the hospital, was present and assisted. All nurses in attendance were employed by the hospital and not by Dr. Ryan. The operation performed by Dr. Ryan consisted in removing stones from the gall bladder. The decedent was very corpulent. An incision about eight inches in length was made in the abdominal cavity. In the course of the operation many sponges were used–forty or more. At times certain acts were performed by the defendant, at other times certain other acts were performed by Dr. Ayers, at other times certain acts were performed by the nurses who were present and assisting. Acting on the defendant's request, the trial court gave an instruction which, among other things, contained a passage as follows: “if it is just as probable that said sponge was left there by the negligence of another * * * then your verdict must be in favor of defendant Fred S. Ryan.” It also gave an instruction as follows: “If you find from the evidence that none of the nurses or attendants or doctors or assistants present at the operation of the deceased were in the pay or employ of defendant, Fred S. Ryan, then any negligence, if any, committed by any of said nurses, attendants, doctors, or assistants cannot be charged to Dr. Fred S. Ryan unless you find that he directed the act complained of or that he knew of the existence of such negligent conduct and had a chance to remedy the fault, but failed to do so.” But the trial court declined to give an instruction requested by the plaintiff which was worded as follows: “You are instructed that where a surgeon performs an operation at a hospital and an assistant surgeon acts under his direction, it is no defense to an action for negligently leaving a sponge in the patient's body that it may have been left by another surgeon.” Asserting that the relation of respondeat superior existed between Dr. Ryan and the others in the room at the time the operation was performed, the plaintiff contends that the trial court erred in giving the first two instructions just mentioned and refusing the other. With this contention we do not agree. It cannot be said that the relation of master and servant existed between Dr. Ryan and any other person present in the room. There is no evidence that would justify the application of the doctrine of qui facit per alium facit per se. Guell v. Tenney, 262 Mass. 54, 159 N.E. 451; Blackburn v. Baker, 227 App.Div. 588, 237 N.Y.S. 611, 613; Maberto v. Wolfe, 106 Cal.App. 202, 289 P. 218.
In refusing to give the instruction herein last above set forth, we think the trial court did not err. In his defense it was nowhere claimed by Dr. Ryan that some other surgeon left the sponge in the abdominal cavity of the patient. It was his defense that whether he left it there, or did not, nevertheless he used ordinary care. In that connection he testified that, being about to close the wound, he made a careful search for all of the sponges and that then he asked the sponge nurse for her count. She replied that all were accounted for. He then closed the incision and was dismissed from the case. Assuming that the sponge nurse negligently kept the sponge count and negligently made the wrong reply, under the facts which we have stated we think it is clear that the defendant was not liable for the negligent acts of the sponge nurse and that the instructions given were not erroneous.
The trial court gave several instructions as to the necessity and effect of the testimony of expert witnesses delineating what is and what is not the proper practice in performing such operations as here involved. The plaintiff quotes from Barham v. Widing, 210 Cal. 206, at page 214, 291 P. 173, 176, as follows: “This rule [that scientific knowledge must be proved by scientists], however, applies only to such facts as are peculiarly within the knowledge of such professional experts, and not to facts which may be ascertained by the ordinary use of the senses of a nonexpert.” And then he claims that the instant case presents “facts which may be ascertained by the ordinary use of the senses of a nonexpert.” Then he argues that in the instant case said instructions were inapplicable. Before proceeding it should be stated that in presenting his case in chief the plaintiff relied on the doctrine of res ipsa loquitur and did not introduce the evidence of medical men on the subject of what was proper medical practice. In presenting his case the defendant called and examined several expert witnesses. The plaintiff did not in the trial court object to the evidence of any one of those witnesses, but each expert was examined and cross-examined at length. We do not understand the plaintiff to contend that any one of the instructions mentioned in this paragraph was incorrectly framed if in this case the testimony of experts was admissible. However, the objection now made is not a claim that the court erred in stating a single proposition of law; but it is, in effect, an attack on evidence that was never, prior to this time, objected to. Assuming, solely for the purposes of this decision, that the plaintiff may at this time and in this form attack the proceedings in the trial court, we pass to a consideration of the question whether the instructions were applicable in the instant case. In following and applying the rule quoted from Barham v. Widing, supra, many cases are, and will be, difficult of solution. However, in a “sponge case” we think the courts do not differ. Of course, no two cases are identical in their facts. In some of them, as they were presented on appeal, no question of proper practice was involved. The answer was, in effect, “I didn't do it.” Laughlin v. Christensen (C.C.A.) 1 F.(2d) 215. In Armstrong v. Wallace (Cal.App.) 47 P.(2d) 740, the defendant wholly failed to meet the inference of negligence which was cast on him by applying the doctrine of res ipsa loquitur. In Funk v. Bonham, 204 Ind. 170, 183 N.E. 312, the evidence was conflicting and the jury returned a verdict in favor of the plaintiff. But counsel have not cited, and we have not found, a case in which it was held as a matter of law that under a set of facts such as appear in the instant case it was error to give the instructions under attack. In Cassingham v. Berry (Okl.Sup.) 150 P. 139, 141, counsel for the plaintiff, in attacking an instruction given in a parallel case, stated their objection as follows: “The inherent vice in this instruction is the mistake the court made in assuming and inferring as a matter of fact that the defendant could leave the sponges in the abdominal cavity in the exercise of ordinary care. * * * Common sense dictates that leaving the sponges in the abdominal cavity is absolutely and totally inconsistent with the exercise of ordinary care.” In disposing of that attack, 150 P. 139, on page 141 the Supreme Court of Oklahoma said: “The doctrine advanced, in this position of the plaintiff, is too exacting for human affairs. It is tantamount to saying that if ordinary care had been used, no mistake could have occurred. It assumes that the exercise of ordinary care would have rendered a human being infallible. And it is a matter of common knowledge, based upon everyday experience, that even in the exercise of the utmost care, all men do make mistakes.” In the instant case expert evidence was introduced by this defendant as to what was proper practice in the locality where the operation was performed. The defendant personally testified that he carefully followed that practice in every respect. He was corroborated, but not contradicted by anyone. He was entitled to present that defense. In other words, each case must be tried and determined on its own facts. No set rule obtains merely because it is a “sponge case.”
Acting upon the request of the defendant the trial court instructed the jury as follows: “The plaintiff in this action is limited to the allegation of negligence which he makes in his complaint. He can recover on no other ground. The only charge is that the defendants negligently left a sponge in the abdomen of Rose Carauddo. There is no claim that defendants were unskilled or that they negligently used any improper kind or type of sponge, or that an improper or a negligent kind of sponge was used, or of using an improper sponge, or one not provided with rings or hemostats.” The plaintiff calls attention to the fact that he had pleaded his cause of action in general terms and therefore that he was entitled to show any act tending to prove such negligence. The first answer is, he makes no claim that he was deprived of such right. During the trial it was the theory of the plaintiff that in the performance of such an operation the only proper practice was to use a sponge provided with rings or hemostats; that the defendant did not use that kind of sponges; and that therefore he was negligent. On the other hand, it was the theory of the defendant that the proper practice was for the person performing the operation to use due care in inserting the sponges and use due care in taking them out, and also that the nurses in attendance should be required to keep a proper count of the sponges and report that count before the incision was closed. In the light of those issues, we see no error in the instruction complained of.
The judgment appealed from is affirmed.
We concur: NOURSE, P. J.; SPENCE, J.