Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 43725-9-I
Title of Case: Mary Lou Miller, Appellant
v.
Karny Jacoby, Md., Respondent
File Date: 08/28/2000
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 98-2-14064-0
Judgment or order under review
Date filed: 10/30/1998
Judge signing: Hon. James W. Bates Jr
JUDGES
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Authored by H. Joseph Coleman
Concurring: C. Kenneth Grosse
Dissenting: Marlin J Appelwick
COUNSEL OF RECORD
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Counsel for Appellant(s)
Marcus B. Nash
Stafford Frey & Cooper
2500 Rainier Twr
1301 5th Ave
Seattle, WA 98101-2621
Counsel for Respondent(s)
Lory R. Lybeck
7525 SE 24th St Ste 110
Mercer Island, WA 98040
Katharine W. Brindley
1325 4th Ave #1500
Seattle, WA 98101
Marilee C. Erickson
Reed McClure
Two Union Square
601 Union St Ste 4800
Seattle, WA 98101-3900
Sherry H. Rogers
Two Union Square
601 Union St Ste 4800
Seattle, WA 98104-7081
Kara R. Masters
7525 SE 24th St Ste 110
Mercer Island, WA 98040
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MARY LOU MILLER, an individual, )
) No. 43725-9-I
Appellant, )
) DIVISION ONE
v. )
)
KARNY JACOBY, M.D., and JOHN )
DOE JACOBY, wife and husband, and )
the marital community composed )
thereof; ROBERT C. IRETON, M.D., )
and JANE DOE IRETON, husband and )
wife, and the marital community )
composed thereof; and NORTHWEST )
HOSPITAL, ) Published Opinion
)
Respondents. ) FILED:
)
)
COLEMAN, J. - Mary Lou Miller sued two physicians and their employer
for medical malpractice when a portion of a Penrose drain remained in her
body following surgery. The drain was deliberately placed in the surgical
wound to facilitate postoperative healing but was not completely removed
before the patient was discharged. Miller offered no expert testimony to
prove that the physicians' actions were negligent. After carefully
reviewing the facts presented in this case, we conclude that without expert
testimony, a layperson could not determine whether the physicians failed to
act in a reasonably prudent manner. Therefore, we affirm the trial court's
summary judgment dismissal of the claims.
FACTS
On January 30, 1997, Miller underwent surgery for the removal of
kidney stones. Dr. Robert Ireton performed the surgery at Northwest
Hospital. Before completing the surgery, Dr. Ireton placed a one-half inch
Penrose drain in the wound to facilitate post-operative healing. A Penrose
drain is a soft piece of tubing placed in a wound to drain fluid.
Dr. Ireton ordered the drain to be removed some days following
surgery. When the nurse on duty, Leslie Rockom, attempted to remove the
drain, she felt resistance and told Miller that the drain "wouldn't come
out," and that she would call a doctor to remove it. In a deposition,
Rockom estimated that since 1965 she has cared for approximately 100
patients with Penrose drains and that probably only five drains resisted
removal to the degree that she called in a physician. Miller later
testified that she felt pain when Rockom tried to pull out the drain.
Dr. Karny Jacoby responded to Rockom's request for help in removing
the drain. Rockom informed Dr. Jacoby that she tried to pull out the drain
and that she met resistance, causing pain. Dr. Jacoby then proceeded to
remove the drain. She later testified that she had no difficulty in
removing the drain and thus did not think it necessary to examine the drain
in detail. Miller claimed, however, that after Dr. Jacoby removed the
drain, she stated, "I hope I got it all."
Miller was discharged on February 3, 1997. She continued to suffer
pain in her right side and swelling in her abdominal area. After two
follow-up appointments, Dr. Ireton discovered on April 29, 1997, that a
portion of the drain remained in the area of the surgical site. Miller
consulted with a different physician for the removal of the drain, Dr.
Robert Weissman, who performed a second surgery on May 23, 1997. According
to Dr. Weissman's operative report, the end of the drain that he removed
was angular, ragged, and irregular, "possibly representing where the drain
broke off." Dr. Weissman indicated, however, that Miller's complaints of
pain and swelling after the first surgery were probably unrelated to the
presence of the drain.
On June 9, 1998, Miller sued Dr. Ireton, Dr. Jacoby, and Northwest
Hospital for medical malpractice. Dr. Jacoby obtained a deposition from
Dr. Wayne Weissman,1 a urologist, in which he testified that Dr. Jacoby's
actions in removing the drain conformed to the standard of care. He
further testified that "{g}iven the fact that one end of the Penrose drain
removed {in the second surgery} was ragged and irregular, it is highly
likely that the Penrose drain was inadvertently sutured in place, deep
within the wound, beneath the muscle layers." Dr. Weissman stated that
suturing a Penrose drain in place "deep within the wound" did not comport
with common practice. 'It is the usual and customary practice to lay the
Penrose drain in place, deep within the wound, and only secure the drain
with a single superficial suture at the skin level. The procedure to
remove a Penrose drain involves cutting the skin suture and then pulling
the drain out.'
Miller offered no expert testimony of her own, however, to support her
claims.
The defendants moved for summary judgment, arguing that because Miller
offered no expert testimony, she failed to raise a genuine issue of fact
regarding whether the defendants had breached the standard of care. The
court granted the motions and dismissed all of Miller's claims. Miller
appeals.
ANALYSIS
Miller argues that the trial court erred in dismissing her medical
malpractice claims due to her failure to offer expert testimony. She
contends that the evidence submitted was sufficient to support the
conclusion that Drs. Ireton and Jacoby were negligent, relying on the rule
that holds that a medical provider who inadvertently leaves a foreign
object in a patient's body during surgery is negligent as a matter of law.
This rule, however, does not apply in determining whether a physician was
negligent in the performance of a surgical or postoperative procedure. In
this case, expert testimony is needed to prove negligence.
We review a trial court's summary judgment order de novo. Benjamin v.
Washington State Bar Ass'n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999).
Summary judgment is appropriate if no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. Benjamin,
138 Wn.2d at 515. In reviewing a summary judgment order, we consider the
facts in the light most favorable to the nonmoving party. Reid v. Pierce
County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998).
To prove medical malpractice, a plaintiff must establish that her
"injury resulted from the failure of a health care provider to follow the
accepted standard of care{.}" RCW 7.70.030(1). In order to establish that
the health care provider departed from this standard, the plaintiff must
prove that "{t}he health care provider failed to exercise that degree of
care, skill, and learning expected of a reasonably prudent health care
provider at that time in the profession or class to which he belongs, in
the state of Washington, acting in the same or similar circumstances{.}"
RCW 7.70.040(1).
The standard of care in a medical malpractice action must generally be
established through expert testimony. Harris v. Robert C. Groth, M.D.,
Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983). Although medical facts can
be established with lay testimony if the facts are observable by a
layperson's senses and describable without medical training, a layperson
generally cannot observe or describe whether a particular medical practice
is reasonably prudent. Harris, 99 Wn.2d at 449.
However, Washington courts have long followed the rule that a medical
provider who introduces a foreign object into a patient's body during
surgery and inadvertently fails to remove the object before the wound is
closed can be negligent as a matter of law. See, e.g., Bauer v. White, 95
Wn. App. 663, 668, 976 P.2d 664, review denied, 139 Wn.2d 1004 (1999); Van
Hook v. Anderson, 64 Wn. App. 353, 357-59, 824 P.2d 509 (1992); McCormick
v. Jones, 152 Wash. 508, 511, 278 P. 181 (1929). "This is because cases
involving 'objects lost in the patient's body probably constitute the
clearest examples of malpractice.'" Bauer, 95 Wn. App. at 667 (quoting
Philip A. Talmadge & Ann Marie Neugebauer, A Survey of Washington Medical
Malpractice Law, 23 Gonz. L. Rev. 267, 289 (1987-88)). In cases where an
object is inadvertently left in a patient during surgery, the medical facts
are generally observable to a lay person and expert testimony is therefore
not required. See Bauer, 95 Wn. App. at 667.
Miller relies on two recent cases to support her argument that this
rule applies to her case. In Van Hook, 64 Wn. App. at 356, a sponge was
inadvertently left in the plaintiff's body during surgery. Two nurses were
responsible for counting sponges inserted and retrieved during the surgery.
In holding that the surgeon performing the operation was not directly or
vicariously responsible for the nurses' failure to account for all of the
sponges, the court assumed that the nurses' acts constituted negligence as
a matter of law. Van Hook, 64 Wn. App. at 357-59. In Bauer, 95 Wn. App.
at 665, a metal pin was inadvertently left in the plaintiff's leg during
knee surgery. Finding that there was no evidence that any particular
medical provider who attended the surgery was responsible for removing the
pins, the court held that the surgeon in charge of the operation was
negligent as a matter of law, explaining that its holding was "consistent
with Washington's long history of requiring a physician, or at least
someone in the operating room, to account for all foreign objects." Bauer,
95 Wn. App. at 668.
The rule applied in the Van Hook and Bauer decisions is not, however,
applicable to this case. In Van Hook and Bauer, the medical providers held
to be negligent as a matter of law had a duty to account for foreign
objects used during surgery and to remove the objects before closing the
wound. Expert testimony is certainly not required to understand that
objects placed in the body during surgery must be properly accounted for
and removed at the completion of surgery. In both of the cases cited by
the plaintiff, the objects remained in the patients' bodies because the
medical providers failed to perform this duty.
Here, in contrast, the respondent physicians did not have a duty to account
for and remove the drain during surgery. Dr. Ireton deliberately
positioned and left the drain in place after the wound was closed in order
to drain the wound following surgery. Dr. Jacoby attempted to remove the
drain during a separate, postoperative medical procedure. Although she did
not remove the entire drain, this was not because she had failed to account
for it. Dr. Jacoby may have been negligent in the manner and method of
removal, but that determination can be made only by evaluating the standard
of care required of a reasonably prudent physician. To hold otherwise
would mean that anytime a small piece of catheter or drain flaked off and
remained in the patient's body, causing injury, the physician who attempted
to remove the drain would be liable as a matter of law. This is contrary
to the rule requiring expert testimony to establish medical negligence.
Such testimony is necessary to set forth the appropriate standard of care
under these circumstances.
Likewise, a layperson could not determine, without expert testimony,
whether Dr. Ireton's actions in placing the drain in Miller's body were
within the standard of care. Miller theorized that Ireton acted
negligently by suturing the drain in place during surgery. The record,
however, contains no direct evidence that Dr. Ireton sutured the drain in
place. Even assuming for purposes of summary judgment that Miller has
raised an inference that Ireton inadvertently sutured the drain in place,
Miller must still prove that Ireton's actions were negligent, and expert
testimony is needed to prove that claim. Although Dr. Weissman attested
that it is not the usual and customary practice to suture a drain in place
within the wound, he did not address whether a reasonably prudent surgeon,
acting within the standard of care, could nonetheless inadvertently suture
a drain in place. Opining that Dr. Ireton's procedure did not comport with
common practice is not the equivalent of testifying that his procedure
violated the standard of care. In fact, Dr. Weissman did not testify
regarding the standard of care, and the only evidence addressing this
question contradicts Miller's position. In his own declaration, Dr. Ireton
attested that 'an unintended or inadvertent suture . . . does not represent
or establish negligence. In circumstances such as those presented during
Ms. Miller's surgery, an inadvertent suture can occur without any deviation
from reasonable, prudent and appropriate medical care.' Without additional
expert testimony, a layperson could not conclude that a surgeon who
inadvertently sutured a drain in place was negligent. That conclusion
would require knowledge of surgical practices and procedures, which the
average layperson does not possess.
As for Dr. Jacoby, Miller argued that she breached the standard of
care by not noticing or informing her that a portion of the drain remained
in her body. But from the evidence presented, a layperson also could not
have concluded that Dr. Jacoby acted imprudently or unreasonably. Dr.
Jacoby attested that she had no reason to suspect that the drain was
sutured under the skin. Neither the operative notes nor the progress notes
mentioned that the drain had been sutured. And although Rockom experienced
unusual resistance in attempting to remove the drain, Dr. Jacoby had no
difficulty. Without any knowledge of medical practices, a layperson could
not conclude that when a doctor feels no resistance in removing a drain and
there is no indication in the operative or progress notes that the drain
has been sutured in place, the doctor should nonetheless inspect the drain
in detail. Moreover, the only expert testimony contained in the record
that addresses the issue directly contradicts Miller's theory. Dr.
Weissman testified that Dr. Jacoby had no reason to examine the drain in
detail "as there was no indication of a problem in removing the drain.
Since Dr. Jacoby did not know the drain tore, she could not inform the
patient of a problem." In Dr. Weissman's opinion, Dr. Jacoby conformed to
the standard of care of a reasonably prudent urologist when she removed the
drain.
Finally, Miller argues that the evidence is sufficient to prove that
the respondents were negligent under the res ipsa loquitur doctrine. The
doctrine of res ipsa loquitur recognizes that an occurrence may be of such
a nature that the occurrence is, by itself, sufficient to establish
negligence on the part of the defendant, without any further proof. Tinder
v. Nordstrom, Inc., 84 Wn. App. 787, 791, 929 P.2d 1209 (1997) (citing
Morner v. Union Pac. R.R. Co., 31 Wn.2d 282, 291, 196 P.2d 744 (1948)).
For the doctrine to apply, the plaintiff must prove in the abstract that
there is a reasonable probability that the event producing the injury would
not have occurred in the absence of negligence. See Tinder, 84 Wn. App. at
792-93 ('The mere occurrence of an accident and an injury does not
necessarily infer negligence.'). Here, however, Miller has failed to show
that the circumstances of her injury support such an inference. As
discussed above, a lay person would not be able to determine, without
expert testimony, that Drs. Ireton and Jacoby departed from the standard of
reasonable, prudent, and appropriate medical care. Thus, the doctrine of
res ipsa loquitur does not apply.
Because Miller offered no contrary expert testimony to support her
claim that the respondents breached the standard of care, we conclude that
the trial court did not err in dismissing her claims on summary judgment,
and we affirm.
WE CONCUR:
1Dr. Wayne Weissman served as an expert witness; Dr. Robert Weissman was
the surgeon who removed the retained portion of the Penrose drain.