IN THE COURT OF APPEALS 10/29/96

OF THE

STATE OF MISSISSIPPI

NO. 94-CA-00807 COA

DOROTHY COLEMAN

APPELLANT

v.

PAUL RICE, M.D. AND CARL REDDIX, M.D.

APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. HON. ROBERT LEWIS GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT:

ARTHUR F. JERNIGAN

REUBEN V. ANDERSON

ATTORNEYS FOR APPELLEES:

MILDRED M. MORRIS
WALTER T. JOHNSON

NATURE OF THE CASE: MEDICAL MALPRACTICE

TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN FAVOR OF

DEFENDANTS DR. PAUL RICE AND DR.CARL REDDIX

EN BANC.

DIAZ, J., FOR THE COURT:

The Appellant, Dorothy Coleman (Coleman), filed suit for damages from severe complications

suffered as the result of a laparotomy sponge being left in her abdominal cavity during a

hysterectomy. The complaint was filed against both surgeons who participated in the surgery and

against the hospital where the surgery was performed. The claim against the hospital was a

respondeat superior action alleging that the assisting nurses, furnished by the hospital and charged

with responsibility for conducting sponge counts at various stages of the procedure, negligently failed

to account for all sponges before the patient’s incision was closed. The lower court granted summary

judgment in favor of the surgeons. Coleman filed an interlocutory appeal from the ruling pursuant to

Mississippi Rule of Civil Procedure 54(b). Therefore, the issue of the negligence of the hospital staff

is not directly before us at this time.

FACTS

In July 1992, Coleman was treated for uterine fibroids by Dr. Paul Rice (Dr. Rice). After some

consultation, Coleman decided to have a total hysterectomy. Dr. Rice performed the hysterectomy on

July 8, 1992 with the assistance of Dr. Carl Reddix (Dr. Reddix). During the procedure, the doctors

used lap sponges to pack the bowels away from the area that they were working on, as well as to

soak up fluid and blood. Coleman was discharged three days after her surgery.

Coleman developed complications from the surgery that required her to return to Dr. Rice in October

1992. Dr. Rice decided to perform a posterior laparotomy to determine the extent of Coleman’s

medical problems. This procedure was performed by Dr. Rice with the assistance of Dr. Helen

Barnes. It was not until their incision that the doctors discovered that a 12 x12 inch lap sponge had

been left in Coleman’s body. Drs. Rice and Barnes attempted to remove both the abcess that had

developed and the sponge, but they had to recruit the assistance of general surgeon, Dr. Harvey

Sanders. Dr. Sanders completed the surgery which entailed draining the abcess, removing the sponge,

removing part of Coleman’s small and large intestine, removing a portion of her colon, and a

colostomy. Portions of Coleman’s small intestine had to be removed because Dr. Sanders discovered

holes in it. In December 1992, Coleman underwent a third surgical procedure to reverse the

colostomy.

Coleman filed a complaint against Drs. Rice and Reddix, as well as the hospital in October 1993. Drs.

Rice and Reddix filed a motion for summary judgment and supported the motion with expert
affidavits contending that the doctors complied with the appropriate standard of care. Relying on the

"layman exception" to the general rule, Coleman filed her response without any expert affidavits.

After a hearing, the lower court granted summary judgment in favor of Dr. Rice and Dr. Reddix.

DISCUSSION

During an operation, a patient entrusts his body and life into the hands and skills of the surgeon. If a

foreign object is inadvertently left in the patient's body, there is no need for an expert in the field to

establish that the surgeon was negligent. The court in such an instance can find negligence as a matter

of law for an act that obviously falls below the requisite standard of care. Rudeck v. Wright, 709 P.2d

621, 626 (Mont. 1985).

Several jurisdictions including Mississippi have either held or alluded to the fact that a foreign object

unintentionally left in the patient after surgery is negligence per se, and therefore, liability cannot be

relieved. See Buzan v. Mercy Hosp., Inc., 203 So. 2d 11, 12 (Fla. Dist. Ct. App. 1967); Laws v.

Harter, 534 S.W.2d 449, 451 (Ky. Ct. App. 1975); Tyler v. Touro Infirmary, 223 So. 2d 148, 222-

23 (La. 1969) (overruled on other grounds); Guilbeau v. St. Paul Fire & Marine Insurance Co., 325

So. 2d 395, 396 (La. Ct. App. 1975); Saucier v. Ross, 73 So. 49, 50 (Miss. 1916); Rudeck, 709 P.2d

at 626; Harrison v. Wilkerson, 405 S.W.2d 649, 651 (Tenn. Ct. App. 1966); Conrad v. Lakewood

Gen. Hosp., 410 P.2d 785, 787 (Wash. 1966). The often cited rule is, "a surgeon undertaking to

perform an operation requiring the placing of sponges in the incision does not complete his

undertaking until the sponges are properly removed . . . Thus, there are many cases which take the

view that the failure of a surgeon to remove all sponges or foreign substances from a surgical wound

is negligence per se." 61 Am. Jur. 2d Physicians and Surgeons § 258, at 397-98 (1981).

Particularly dispositive to the present case is the case of Long v. Sledge, where the surgeon left an

eight-inch-long hemostat in the patient after surgery. Long v. Sledge, 209 So. 2d 814, 816 (Miss.

1968). In that case, the lower court granted a motion for JNOV in favor of the patient. As a result, a

second trial was held only to determine the amount of damages recoverable. In Long, the court held

that the surgeon's failure to remember removing the hemostat constituted negligence; therefore, the

trial court correctly granted Sledge's motion for JNOV. Long, 209 So. 2d at 819. In Guilbeau v. St.

Paul Fire & Marine Insurance Co., the patient was granted a judgment against the surgeons who

operated on him when a laparotomy pad was not removed from him during surgery. The facts

showed in Guilbeau, that at the conclusion of the surgical procedure, and before the surgeon began

closing the surgical incision, two nurses jointly conducted a count of all the instruments, sponges, and

pads used during the surgical procedure. Guilbeau, 325 So. 2d at 396. At the time, the counts

indicated that all items were present. Id. After being released from the hospital, the patient continued

to suffer from nausea and vomiting. Id. He was readmitted about one month after the surgery. Id. At

the time, he had a dark drainage from the wound, and there was evidence of a small bowel

obstruction. Id. X-rays indicated that a laparotomy pad was left in the patient from the surgery. Id.

The appeals court upheld the judgment stating:

The general rule . . . is that a surgeon's failure to remove a sponge or pad before closing

an incision may be regarded as negligence per se, and some authorities hold that the

surgeon cannot relieve himself from liability for injury to a patient caused by leaving

sponges or pads by reliance on a custom or rule requiring the attending nurse to count the
sponges or pads used and removed, and on the nurse's statement as to the count.

Guilbeau, 325 So. 2d at 397 (citations omitted).

Dr. Reddix argues that he should not be charged with negligence in this case because as assisting

surgeon, he had already left the operating room when the closing procedure took place. Based on the

present facts, it does not seem that Dr. Reddix’s responsibilities were materially different from that of

Dr. Rice. As physicians conducting the operation, both undertook a duty to the patient to refrain

from negligently injuring her and both affirmatively elected to rely upon an independently conducted

counting process to determine that no sponges were left in the patient. This standard of negligence

per se must apply to both doctors who participated in the operation. See Conrad, 410 P.2d at 787-

88. An assisting surgeon who was present during the operation cannot escape liability by claiming

that he was not negligent in placing or removing sponges merely because he left the operating room

before the closing procedure.

This Court concludes that the evidence presented is sufficient to establish that the surgeons were

negligent per se without the necessity of expert testimony. Therefore, we reverse the decision of the

circuit court. We must stress that on remand, the Appellant must still present proof of damages

against Dr. Rice and Dr. Reddix before she is allowed to recover from either one or both doctors. It

is for the reasons stated above that we reverse this case and remand the cause back to the circuit

court for further proceedings consistent with this opinion.

THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT GRANTING SUMMARY

JUDGMENT IN FAVOR OF DOCTOR PAUL RICE AND DOCTOR CARL REDDIX IS

REVERSED AND THIS CAUSE IS REMANDED FOR A TRIAL FOR DETERMINATION

OF DAMAGES ONLY. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES,

DOCTOR RICE AND DOCTOR REDDIX.

THOMAS, P.J., BARBER, COLEMAN, KING AND PAYNE, JJ., CONCUR.

IN THE COURT OF APPEALS 10/29/96

OF THE

STATE OF MISSISSIPPI

NO. 94-CA-00807 COA

DOROTHY COLEMAN

APPELLANT

v.

PAUL RICE, M.D. AND CARL REDDIX, M.D.

APPELLEES
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

McMILLIN, J., CONCURRING IN PART, DISSENTING IN PART:

I agree with the majority that summary judgment in favor of the defendant physicians must be

reversed. I must respectfully dissent insofar as the majority proposes to, sua sponte, take the matter

one step further and render judgment in favor of the plaintiff on the issue of liability; relief which the

plaintiff did not seek. In so doing, the Court is deciding an issue not directly addressed by the trial

court and not necessary for the decision of the issue properly before us. The narrow issue presented

for our decision is whether expert opinion is necessary to create an issue of negligence against a

surgeon for inadvertently leaving a foreign object in the patient’s body when the surgeon presents

expert opinion that reliance on an independently conducted sponge count is sufficient to meet the

standard of care. That issue, as framed by the parties, can be decided on the proposition that, on that

particular question, the medical profession is not free to define its own standard, but that the issue is

understandable to the ordinary layman. Thus, it is unnecessary to rebut an expert’s affidavit that such

reliance did meet the applicable standard of care with an expert’s opinion to the contrary in order to

create an unresolved issue of fact.

Having decided that issue against the defendant physicians, the work of this Court should have ended

in this case. It must be remembered that there was no cross-motion for summary judgment by the

plaintiff on the issue of liability. While there is authority that a court may grant summary judgment to

the nonmoving party in the appropriate case, it has been said that "an appellate court should not

reverse a summary judgment and order judgment for the nonmoving party on the basis of an issue

that the movant had no opportunity to meet in the [trial] court." 10A Charles A. Wright, et al.,

Federal Practice and Procedure: Civil 2d § 2720 (1983). The issue of whether leaving a foreign

object in a patient is negligence per se or whether such proof merely creates a prima facie case of

negligence need not be decided in this case, since, in either event, summary judgment must be

reversed.

That specific question has never been decided in Mississippi and is, thus, a question of first

impression. Saucier v. Ross, cited by the majority, holds only that "[u]nexplained, the leaving of a

four-inch rubber tube in a patient’s body is negligence. . . ." Saucier v. Ross, 112 Miss. 306, 314, 73

So. 49, 50 (1916) (emphasis supplied). This decision, then, seems to admit the possibility of an

explanation that would relieve the doctor of liability. Even though the court went on to say that "it

occur[red] to [the court] that it would be very difficult for a physician to explain" away such an

event, id., nevertheless, I do not think, by any stretch, this idle speculation creates a rule of law

recognizing negligence per se.

The other leading case on the subject in Mississippi, Long v. Sledge, dealt with the applicability of the
sudden emergency doctrine as a defense for leaving an eight-inch-long metal hemostat in a patient.

Long v. Sledge, 209 So. 2d 814, 817-18 (Miss. 1968). The doctor claimed that he had placed the

hemostat to stop internal bleeding, and that it had been pushed from sight while he dealt with an

unforeseen emergency involving the patient’s spleen. He testified to having forgotten about the

hemostat after the emergency was over, and he had returned to the normal operation procedures. Id.

at 818. The supreme court found the sudden emergency defense unavailable on these facts and

concluded that the doctor was liable on two theories: (a) his failure to remember placing the clamp

and (b) his failure to conduct "a proper exploration of appellee’s abdomen after the operation. . . ." to

discover the clamp. Id. at 818-19. Neither theory involves the doctrine of negligence per se. It is

interesting to note that the court quotes the doctor as saying "that it was a general practice to count

sponges during an operation but it was not a practice to count the clamps." Id. at 818. Thus, this case

offers scant support, either on its facts or its rationale, for the proposition that Mississippi would hold

the facts now before us establish negligence per se on the part of these defendants.

Decisions in other jurisdictions finding such circumstances to be negligence per se, while perhaps

persuasive to the majority, are not dispositive in Mississippi, and there is no need to reach the

question in order to resolve the issue before us. We would, in the main, do well to limit ourselves to

deciding the issues assigned and argued by the parties. We do nothing to advance the general state of

the law when we unnecessarily decide issues simply because the answer appears obvious. It is too

often the case that the obviousness of an answer to an issue not fully argued later proves to be

illusory.

We should, in my opinion, limit ourselves to reversing summary judgment and then remanding this

case for further appropriate proceedings.

FRAISER, C.J., BRIDGES, P.J., AND SOUTHWICK, J., JOIN THIS SEPARATE

WRITTEN OPINION.