Tomei v. Henning

TRAYNOR, C. J. Plaintiff appeals from the part of a judgment entered against her upon a jury verdict on her complaint to recover damages for medical malpractice. Defendant appeals from the part of the judgment entered upon the verdict against him on his cross-complaint to recover [321]the value of his professional services and reimbursement for payments of other medical expenses made by him on plaintiff ’s behalf.

Defendant performed a hysterectomy on plaintiff. During the operation he accidentally sutured her right ureter in two places. The accident was not discovered until four days later. A urologist attempted corrective surgery, which failed, and thereafter it became necessary to remove plaintiff’s right kidney.

At the trial defendant admitted that he had unintentionally sutured plaintiff’s ureter. He presented evidence, however, that the misplacing of the sutures and the failure to discover it during the operation were an unavoidable accident and not the result of negligence on his part. Both sides introduced expert testimony on the questions whether defendant should have identified the ureters by sight or touch to avoid them during the operation and whether before closing the wound he should have conducted tests to determine whether the ureters had been injured. Defendant testified that he took none of these precautions. All the experts agreed that damage to the ureters is a hazard of a hysterectomy that should always be present in the mind of the surgeon and that such damage can occur no matter how carefully the operation is conducted. On direct examination, plaintiff’s expert, Dr. Edmund P. Anderson, a specialist in obstetrics and gynecology, was asked, “Doctor, during the course of a hysterectomy, where the ureter is tied off in two places, and the abdominal wound is closed without exercising any technique to determine the condition of the ureters, would you consider that the exercise of proper care and skill of a surgeon ? ’’ He answered, “No, I would not.” On cross-examination, Dr. Anderson testified that surgeons generally try to stay away from the ureters as much as possible, avoiding any contact with them. Consequently the passage of a catheter through the ureter to test it is not done in all cases, but only when the surgeon suspects some damage to the ureter. Dr. Anderson further testified that there is considerable risk of involving the ureters during a hysterectomy: “ Q. And the reason for this concern is because gynecologists and surgeons understand that the urinary tract can be damaged no matter how careful the surgeon is; isn't that true, doctor? A. That does happen, yes. Q. It happens in a certain, almost recognized percentage of cases, doesn’t it, doctor ? A. Yes, I guess so. ’ ’