Bryan v. Luverne Community Hospital

Yetka, Justice.

Plaintiff’s wife, Erma Bryan, died one week after gallbladder surgery performed by defendant physicians in defendant hospital, with the assistance of surgical nurses employed by the hospital. During the surgery a laparotomy sponge was left inside decedent’s abdominal cavity. Alleging causal negligence of the defendants, plaintiff initiated a wrongful death action against defendants. Defendant hospital cross-claimed against defendant physicians, defendants Dr. Robert R. Donahoe and Donahoe Clinic cross-claimed against the hospital, and all defendants denied plaintiff’s claim of medical malpractice.

At the close of the testimony in this case the court directed a verdict in favor of defendant doctors. The court then issued certain interrogatories to the jury which they answered as follows:

“1. Were the nurses negligent in the making of the sponge count?
“Answer: No.
“2. (If you answer Question No. 1 ‘yes’, then you must answer this question.)
“Was the sponge left in the body of Erma Bryan a direct cause of her death?
“Answer: .......
*28“3. What is the total pecuniary loss suffered by Wayne, Linda and Ronald Bryan which was directly caused by the death of Erma Bryan ?
“Answer: $45,000.”

The court obviously felt someone had been negligent in leaving a surgical sponge in the patient’s body though the jury was denied the opportunity to consider the negligence of the doctors, and, apparently disturbed by the jury’s answers to the interrogatories, the court reversed the jury’s finding of no negligence on the part of the nurses and ordered a finding that the nurses were in fact negligent. Left was the question of causation, namely, whether the leaving of the sponge in the body was the cause of death. The question of causation was not decided by the jury because they were instructed to answer that question only if they found the nurses negligent. A finding by the court of causation would result in the hospital being solely responsible for the $45,000 verdict. The court made a finding of no causation and, thus, no recovery. We hold that the action of the trial court in directing a verdict for the defendant doctors was reversible error in view of our holding in the case of Hestbeck v. Hennepin County, 297 Minn. 419, 212 N. W. 2d 361 (1973), decided subsequent to argument in the instant case. In that case we said:

“Defendant surgeon, joined by defendant county, vigorously contends that where in the course of a surgical operation a sponge count indicates a missing sponge and the surgeon, following skillful and accepted medical procedures in an extensive search for the missing sponge, determines that the patient’s welfare requires a termination of the operation even though the sponge has not been found, a lay jury should not be permitted to find malpractice absent competent expert medical testimony that the surgeon deviated from the standard of professional skill and care of other surgeons. They contend that it was error to submit the case to the jury under the doctrine of res ipsa loquitur. We do not agree. Rather, we believe that not only was the circumstantial evidence sufficient to permit the jury to draw *29an inference of professional negligence but that this is a classic case where, upon plaintiff’s timely request, the court was required to instruct on res ipsa to aid the jury in performing its factfinding function.” 297 Minn. 423, 212 N. W. 2d 364.

By this error the court set in motion a chain of events which could only lead to an inequitable result. While it can be argued plaintiff’s attorney approved of the instructions to the jury and also agreed to allow the court to decide the issue of causation after the jury verdict was received, the latter acquiescence on the issue of causation could hardly be said to have been a free choice at that point because the trial court had already made the basic decision that adversely affected the plaintiff’s case, namely, directing a verdict for defendant doctors.

Keversed and new trial granted on all issues.