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Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 70286-1
Title of Case: Mary Lou Miller
v.
Karny Jacoby, M.D., John Doe Jacoby, et al.
File Date: 10/18/2001
Oral Argument Date: 05/15/2001
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County;
98-2-14064-0
Honorable James W. Bates Jr, Judge.
JUSTICES
--------
Authored by Faith E Ireland
Concurring: Gerry L. Alexander
Charles Z. Smith
Charles W. Johnson
Richard B. Sanders
Bobbe J. Bridge
Tom Chambers
Susan J. Owens
Dissenting: Barbara A. Madsen
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Marcus B. Nash
Stafford Frey & Cooper
2500 Rainier Twr
1301 5th Ave
Seattle, WA 98101-2621
Kim M. Tran
Stafford Frey Cooper
2500 Rainier Twr
1301 Fifth Avenue
Seattle, WA 98101
Counsel for Respondent(s)
Sherry H. Rogers
Reed McClure
601 Union St Ste 4901
Seattle, WA 98101-3920
Lory R. Lybeck
Lybeck Murphy
7525 SE 24th St Ste 110
Mercer Island, WA 98040
Kara R. Masters
Lybeck Murphy
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., Suite 4901
Seattle, WA 98101-3920
Sherry H. Rogers
Reed McClure
601 Union St Ste 4901
Seattle, WA 98101-3920
Mary H. Spillane
Williams Kastner & Gibbs
4100 Two Union Square
601 Union St.
Seattle, WA 98101
Daniel W. Ferm
Williams Kastner & Gibbs
601 Union St #4100
PO Box 21926
Seattle, WA 98101
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MARY LOU MILLER, )
an individual, )
Petitioner, )
v. ) No. 70286-1
)
KARNY JACOBY, M.D., and ) En Banc
JOHN DOE JACOBY, wife and )
husband, and the marital community ) Filed October 18, 2001
composed thereof; )
ROBERT C. IRETON, M.D., and )
JANE DOE IRETON, husband and )
wife, and the marital community )
composed thereof; and )
NORTHWEST HOSPITAL, )
)
Respondents. )
)
IRELAND, J. - In this case, we review a Court of Appeals' decision
affirming summary dismissal of Petitioner Mary Lou Miller's medical
malpractice claims. At issue is whether expert medical testimony is
necessary to a determination that health care providers' actions, in
placing a Penrose drain in a patient's body during surgery and in not
removing the entire drain postoperatively, constitute negligence.
Whether the drain was negligently placed during surgery is not readily
observable to laypersons, and thus expert testimony must be presented to
establish the standard of care necessary during the procedure. No such
testimony was presented. However, inadvertently leaving a foreign object
in a patient's body is negligent as a matter of law. There is a genuine
issue of material fact as to the health care providers' alleged negligence
in failing to remove the entire drain postoperatively.
Thus, we affirm the summary dismissal of Miller's claim as to Dr. Ireton
and reverse the summary dismissal of Miller's claims as to Dr. Jacoby and
Northwest Hospital.
FACTS
On January 30, 1997, Mary Lou Miller (Miller) was admitted to
Northwest Hospital by her physician, Robert C. Ireton, M.D. (Ireton).
Miller underwent surgery to remove kidney stones (pyelolithotomy) and to
repair a malformed right kidney (pyeloplasty).
According to Ireton, the surgery was "uneventful and without
complications." Clerk's Papers (CP) at 430. Before final closure of the
incision, Ireton placed a Penrose drain in the wound to facilitate
postoperative healing.1 Ireton intended that the Penrose drain would be
removed some days later.
Dr. Karny Jacoby (Jacoby), the urologist who provided weekend coverage
for Ireton, saw Miller in the hospital on February 1 and February 2. On
February 1, Jacoby found that the dressing over the Penrose drain was
moist. The dressing was changed, and Jacoby ordered that the drain be
removed later the same day if the dressing stayed dry.
On the morning of February 2, Leslie Rockom, R.N. (Rockom), an
employee of Northwest Hospital, attempted to remove the Penrose drain as
Jacoby had ordered. Rockom felt resistance and notified Jacoby, who
removed the drain and disposed of it with the soiled dressing.
In her deposition, Rockom estimated that since 1965 she has cared for about
100 patients with Penrose drains. She estimated that in about 5 cases, she
encountered resistance that caused her to notify a physician.
Jacoby stated that she "did not note any resistance or difficulty in
removing the drain," so she did not "feel that it was necessary to examine
the Penrose drain in detail." CP at 50.
Miller stated that when Rockom tried to remove the drain "it resisted her
pull and caused me pain." CP at 383. Miller also stated that when Jacoby
removed the drain, the doctor said, "I hope I got it all." CP at 384.
Jacoby was not present when the drain was placed, and Ireton was not
present when Jacoby removed the drain. Ireton stated that he was not
advised that any difficulty or complication had been encountered in
removing the drain.
Ireton next saw Miller on February 3, noted that she was doing well, and
discharged her from the hospital. In the course of follow-up visits with
Ireton, Miller reported pain in her right flank and abdomen. Ireton
ordered tests, including an intravenous pyelogram on April 29, 1997, to
evaluate her complaints. The diagnostic imaging report included
impressions that there were "post-operative changes consistent with a right
pyeloplasty" and that there was "radiopaque material in the soft tissues
adjacent to the . . . right kidney." CP at 77. It was reported that the
material "may represent a retained drain or sponge." Id. The findings
were communicated to Ireton, and he informed Miller that he suspected a
portion of the Penrose drain had been retained in the area of the surgical
site.
Miller subsequently sought treatment by Robert Weissman, M.D. (Weissman).
On May 23, 1997, Weissman performed surgery to remove the foreign body-a
5.5 centimeter length of collapsed plastic tubing. Weissman's operative
record contains the following observation:
After more careful blunt and sharp dissection the drain was identified on
the inferior aspect of the incision, several cm anterior to the drain scar,
and the drain was grasped and removed intact. The proximal portion was
noted to be a straight edge and the distal portion an angled, more ragged
and irregular edge, possibly representing where the drain broke off.
CP at 274.
In granting Jacoby's motion for summary judgment, the trial court
considered a declaration by Wayne Weissman, M.D, a board-certified
urologist, who reviewed the operative record of Miller's second surgery and
stated as follows:
Given the fact that one end of the Penrose drain removed by Dr. {Robert}
Weissman was ragged and irregular, it is highly likely that the Penrose
drain was inadvertently sutured in place, deep within the wound, below the
muscle layers. 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.
CP at 53. He also stated that "it would not be reasonable for Dr. Jacoby
to examine in detail the edges of the Penrose drain, as there was no
indication of a problem in removing the drain." Id. He opined that
"Jacoby met the standard of care of a reasonably prudent urologist when
removing the Penrose drain." Id.
In support of his motion for summary judgment, Ireton submitted a
declaration in which he stated that he was personally unaware whether
Miller's Penrose drain was inadvertently sutured. He asserted that in the
circumstances presented during Miller's surgery, he "fully complied with
the standard of care of a reasonably prudent physician." CP at 431.
In opposing the defendants' motions for summary judgment, Miller relied
upon her own affidavit, medical records, and the transcript of Rockom's
deposition.
PROCEDURAL HISTORY
Miller filed this medical malpractice action against Ireton, Jacoby,
and Northwest Hospital on June 9, 1998. The defendants moved for summary
judgment, arguing that because Miller presented no expert testimony, she
failed to raise a genuine issue of material fact as to whether the
defendants had breached the standard of care. The court granted their
motions and dismissed Miller's claims on October 30, 1998.
Miller appealed, and the Court of Appeals affirmed the trial court's
summary dismissal of all claims. Miller v. Jacoby, 102 Wn. App. 256, 6
P.3d 1204 (2000) (Appelwick, J., dissenting). The majority concluded that
"without expert testimony, a layperson could not determine whether the
physicians failed to act in a reasonably prudent manner." Id. at 258.
This Court granted Miller's petition for review of the Court of
Appeals' decision.2
ANALYSIS
Standard of Review
In reviewing an order granting summary judgment, the appellate court
engages in the same inquiry as the trial court and considers the evidence
and the reasonable inferences therefrom in the light most favorable to the
nonmoving party. Young v. Key Pharms., Inc., 112 Wn.2d 216, 226, 770 P.2d
182 (1989). In this case, all facts and reasonable inferences must be
considered in the light most favorable to Miller.
Summary judgment is properly granted when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law. CR 56(c); DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 140, 960
P.2d 919 (1998). A motion for summary judgment "should be granted only if,
from all the evidence, reasonable persons could reach but one conclusion."
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Statutory Requirements
In Washington, actions for injuries resulting from health care are
governed by chapter 7.70 RCW. In the instant action, Miller must establish
that the "injury resulted from the failure of a health care provider to
follow the accepted standard of care{.}" RCW 7.70.030(1). For purposes of
the statute, "health care providers" include physicians, nurses, and
hospitals. RCW 7.70.020.
RCW 7.70.040(1) provides that the plaintiff in an action for medical
malpractice must show that the defendant 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{.}"
Expert Testimony
Generally, expert testimony is necessary to establish the standard of
care for a health care provider in a medical malpractice action. Harris v.
Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983).
Washington courts, however, have long recognized that inadvertently leaving
a foreign object in a patient's body is negligent:
{T}he court can say, as a matter of law, that, when a surgeon inadvertently
introduces into a wound a foreign substance, closes up the wound, leaving
that foreign substance in the body, there being no possibility of any good
purpose resulting therefrom, that act constitutes negligence.
McCormick v. Jones, 152 Wash. 508, 510-11, 278 P. 181 (1929). When medical
facts are "observable by {a layperson's} senses and describable without
medical training," a plaintiff can establish the standard of care for a
health care provider without expert testimony. Harris, 99 Wn.2d at 449
(quoting Bennett v. Dep't of Labor & Indus., 95 Wn.2d 531, 533, 627 P.2d
104 (1981)).
In the case before us, the proper use, purpose, and insertion of a
Penrose drain are not within the common understanding or experience of a
layperson. Therefore, Miller must present expert medical testimony to show
that Ireton acted negligently. Such testimony must be presented to
establish the standard of care under the circumstances.3
We disagree with the Court of Appeals' majority that the same conclusion
can be reached regarding the actions of Rockom (Northwest Hospital) and
Jacoby.
The facts of the instant case vary somewhat from a straightforward "foreign
object" case in that Ireton, the surgeon, did not inadvertently leave the
Penrose drain in the patient's body. Rather, the drain was deliberately
left in place to facilitate recovery. Rockom and Jacoby attempted to
remove the drain in a separate, postoperative procedure.
Nevertheless, as Judge Appelwick notes in his dissent, "The moment of Dr.
Jacoby's incomplete removal of the drain resulted in a foreign object that
was placed in the body intentionally and temporarily during surgery, then
becoming a foreign object inadvertently and permanently left in the patient
at the completion of surgery." Miller, 102 Wn. App. at 268.
Rockom and Jacoby were the health care providers charged with the removal
procedure. Rockom, an experienced nurse, stated that she was concerned
enough about the resistance when she tried to remove the drain to request
Jacoby's assistance. In addition, when viewed in the light most favorable
to Miller, it is reasonable to infer from the statement attributed to
Jacoby-"I hope I got it all"-that the doctor was somewhat doubtful about
complete removal. A portion of the Penrose drain, a foreign object,
inadvertently remained in Miller's body. "Simply put, it is not reasonable
prudence to unintentionally leave a foreign substance in a surgical
patient." Bauer v. White, 95 Wn. App. 663, 668, 976 P.2d 664, review
denied, 139 Wn.2d 1004 (1999). Expert testimony is not needed to assert
negligence under these circumstances.
Res Ipsa Loquitur
Miller argues that the evidence she presented is sufficient to entitle
her to the inference of negligence established by the doctrine of res ipsa
loquitur.
To prevail on a complaint for negligence, a plaintiff must show duty, a
breach of that duty, and injury. Hartley v. State, 103 Wn.2d 768, 777, 698
P.2d 77 (1985). In addition, a plaintiff must show that the breach of duty
was a proximate cause of his or her injury. Id. In some cases, breach of
duty may be proved by circumstantial evidence under the doctrine of res
ipsa loquitur. Douglas v. Bussabarger, 73 Wn.2d 476, 482, 438 P.2d 829
(1968). Under circumstances proper to its application, res ipsa loquitur
can apply to physicians and hospitals. ZeBarth v. Swedish Hosp. Med. Ctr.,
81 Wn.2d 12, 18, 499 P.2d 1 (1972). For res ipsa loquitur to apply, the
following three criteria must be met:
"(1) {T}he occurrence producing the injury must be of a kind which
ordinarily does not occur in the absence of negligence; (2) the injury is
caused by an agency or instrumentality within the exclusive control of the
defendant; and (3) the injury-causing occurrence must not be due to any
contribution on the part of the plaintiff."
Howell v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 58, 785 P.2d
815 (1990) (quoting Jackson v. Criminal Justice Training Comm'n, 43 Wn.
App. 827, 829-30, 720 P.2d 457 (1986)).
There is no evidence to suggest that Miller contributed to the injury-
causing occurrence. Therefore, the final criterion of the doctrine is met
as to Miller's claims against her health care providers.
However, Miller must also demonstrate that her injury would not ordinarily
occur in the absence of negligence. Without knowing the professional
standard of care for a health care provider placing a Penrose drain during
surgery, a layperson would not be able to determine that Miller's injury
would not have occurred absent negligence by Ireton. In addition, Ireton
did not have exclusive control of the drain following surgery. The drain
appeared to be functioning properly while in place, and Ireton was not
present when Rockom and Jacoby removed the drain several days later. For
these reasons, the doctrine of res ipsa loquitur is not available to impose
liability on Ireton.
While the doctrine may be available as to Rockom and Jacoby, there remains
a question of fact in this case as to whether these health care providers
had exclusive control of the drain. There is a question of fact as to
whether exclusive control can be established so as to allow an inference
that Rockom and/or Jacoby were liable under the doctrine of res ipsa
loquitur for leaving a piece of the drain in Miller's body. This issue
should be presented to the fact finder.
CONCLUSION
The summary dismissal of Miller's claim as to Dr. Ireton is affirmed. The
summary dismissal of Miller's claims as to Dr. Jacoby and Northwest
Hospital is reversed. The matter is remanded to the superior court for
trial on the merits.
1A Penrose drain is a piece of soft tubing that is placed into a wound area
to drain off fluid.
2The Court also granted respondents' motions to strike Miller's reply in
support of her petition for review. The reply was subsequently filed as a
supplemental brief.
3It was speculated that Ireton acted negligently by suturing the drain in
place during surgery. Such a conclusion would require medical knowledge
beyond that possessed by laypersons. Jacoby's expert witness stated that
it is not the usual and customary practice to suture a drain in place in a
wound. However, this opinion is not the equivalent of concluding that
Ireton's procedure violated the standard of care.