Ronald W. Young v. Frederick C. Fishback

D.C. Circuit

Ronald W. Young v. Frederick C. Fishback

262 F.2d 469

CourtCourt of Appeals for the D.C. Circuit

DecidedJanuary 20, 1959

Docket14408

StatusPublished

Cited by6 cases

This text of 262 F.2d 469 (Ronald W. Young v. Frederick C. Fishback) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ronald W. Young v. Frederick C. Fishback, 262 F.2d 469 (D.C. Cir. 1959).

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WILBUR K. MILLER, Circuit Judge.

About a year after the appellee, Dr. Fishback, performed an appendectomy on Ronald W. Young, the appellant, an abscess the size of a small egg had developed on the scar. After Dr. Fishback operated again to relieve the abscess, this action for alleged malpractice was filed against him by the patient and his wife.

[470]*470The theory of the plaintiffs-was that a foreign body had been negligently left in the wound at the time of the first operation and had caused the abscess. Plaintiffs did not produce any direct testimony that a foreign substance was found in the course of the second operation, but relied upon Ronald Young’s own testimony and the testimony of his father, both reciting statements to that effect allegedly. made to them individually by Dr. Fishback. The doctor denied making any admissions, and said he found no foreign substance when he reopened the wound. It can be inferred from the testimony of the plaintiffs at least that a small portion of or a few threads from a piece of gauze had been left in the first incision by the doctor. According to the evidence, such material will not be absorbed.

The trial judge interrupted the argument of plaintiffs’ counsel, took the case from the jury, and directed a verdict for the defendant doctor, because the plaintiffs had not produced expert testimony to show that leaving a small bit of gauze or a few threads in the wound is not in accord with the degree of skill and care common to surgeons in this locality.

We think the court erred in taking the case from the jury. Everybody knows, without being told by an expert, that it is not approved surgical practice to leave in a patient’s body a small bit of gauze or a few threads therefrom, or any other foreign nonabsorbable substance, no matter how small. It was for the jury to say whether the defendant had left even a small piece of gauze or other foreign substance in the wound and had thus caused the abscess.

Reversed and remanded for a new trial.

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WILBUR K. MILLER, Circuit Judge.

About a year after the appellee, Dr. Fishback, performed an appendectomy on Ronald W. Young, the appellant, an abscess the size of a small egg had developed on the scar. After Dr. Fishback operated again to relieve the abscess, this action for alleged malpractice was filed against him by the patient and his wife.

[470]*470The theory of the plaintiffs-was that a foreign body had been negligently left in the wound at the time of the first operation and had caused the abscess. Plaintiffs did not produce any direct testimony that a foreign substance was found in the course of the second operation, but relied upon Ronald Young’s own testimony and the testimony of his father, both reciting statements to that effect allegedly. made to them individually by Dr. Fishback. The doctor denied making any admissions, and said he found no foreign substance when he reopened the wound. It can be inferred from the testimony of the plaintiffs at least that a small portion of or a few threads from a piece of gauze had been left in the first incision by the doctor. According to the evidence, such material will not be absorbed.

The trial judge interrupted the argument of plaintiffs’ counsel, took the case from the jury, and directed a verdict for the defendant doctor, because the plaintiffs had not produced expert testimony to show that leaving a small bit of gauze or a few threads in the wound is not in accord with the degree of skill and care common to surgeons in this locality.

We think the court erred in taking the case from the jury. Everybody knows, without being told by an expert, that it is not approved surgical practice to leave in a patient’s body a small bit of gauze or a few threads therefrom, or any other foreign nonabsorbable substance, no matter how small. It was for the jury to say whether the defendant had left even a small piece of gauze or other foreign substance in the wound and had thus caused the abscess.

Reversed and remanded for a new trial.

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262 F.2d 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ronald-w-young-v-frederick-c-fishback-cadc-1959.

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