Landsberg v. Kolodny

DORAN, J.

The gist of the action is that the defendants negligently caused a mesh of cotton gauze, used and applied in the body of the plaintiff Bernice Landsberg during a child delivery, to become lodged and embedded in said plaintiff’s abdomen. The gauze remained in the plaintiff’s abdomen until removed by surgery some two years later. The term plaintiff, as hereinafter used, refers to the plaintiff Bernice Landsberg. Dr. Kolodny was the obstetrician employed by the plaintiff; the delivery took place at Queen of Angels Hospital where Dr. Kolodny was assisted by a resident physician, intern and nurses who were employees of the defendant hospital.

The plaintiff relied upon the doctrine of res ipsa loquitur, and after several days of trial before a jury, a 9 to 3 verdict was returned for the defendants. It is appellants’ contention that the evidence is insufficient to support the verdict; that defendants’ failure to explain the cause of the accident, “or to produce evidence of any measures to prevent such .. . occurrence,” and particularly “defendants’ gross negligence in not counting the sponges used during the delivery” leads to the conclusion that “plaintiffs prima facie case . . . has in no way been met or overcome by the defendants.” Appellants make the further claim that “The verdict for the defendants is explainable only by the fact that the erroneous instructions by the trial court misled the jury.”

On the morning of June 9, 1950, plaintiff entered Queen of Angels Hospital, and about 11:50 a. m. the baby’s heart beats suddenly dropped from 120-160 to a low of 80 beats per minute, a condition requiring immediate delivery. Plaintiff was given a spinal anesthesia; the baby’s head was found to be in an abnormal position requiring the use of forceps to rotate the head, resulting in certain lacerations. In order to facilitate delivery, Dr. Kolodny performed an episiotomy or incision to widen the vaginal canal, and to stop bleeding inserted a number of cotton gauze sponges, about 4 by 4 inches

[160]

square. There was testimony that a custom or usage existed in Class A hospitals not to count sponges used in child delivery, and that if not removed, such sponges would ordinarily be expelled through the natural opening. Such usage differs from that existing in surgery of other parts of the body where sponges would not be naturally expelled.