Appeal by plaintiffs from Thornburg, Judge. Judgment entered 12 June 1980 in Superior Court, Buncombe County. Heard in the Court of Appeals 16 September 1981.
Martin (Harry C.), Judge. Judges Martin (Robert M.) and Becton concur.
Plaintiffs' assignments of error relate solely to exceptions taken to several portions of the trial court's instructions to the jury. As the doctrine of res ipsa loquitur is applicable to the facts of the case and critical to an understanding of the alleged errors in the jury charge, we will first review the law in this area.
A surgeon is not ordinarily an insurer of the success of his operation, and in malpractice actions there is generally no presumption of negligence in the failure to successfully effect a remedy. Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339 (1968); Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285 (1932). There is, however, an exception to this rule. When the facts of the case manifest such obvious lack of skill and care, they may afford in themselves an inference of negligence, thereby invoking the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur has been recognized to apply in actions for malpractice where a surgeon has left a foreign object or substance in a patient's body after an operation. Mitchell v. Saunders, 219 N.C. 178, 13 S.E.2d 242 (1941); Pendergraft, supra. A surgeon is under a duty to remove all harmful and unnecessary foreign objects at the completion of the operation. Thus the presence of a foreign object raises an inference of lack of due care. If the facts of the case justify the application of the doctrine of res ipsa, the nature of the occurrence and the inference to be drawn supply the requisite degree of proof to carry the case to the jury without direct proof of negligence. Young v. Anchor Co., 239, N.C. 288, 79 S.E.2d 785 (1954). The effect of the doctrine of res ipsa, while not relieving
the plaintiff of the burden of proof, is significant. It enables the plaintiff to make out a prima facie case by furnishing some evidence, an inference, of want of care. Mitchell, supra.
Turning now to the present case, the threshold question is whether plaintiffs offered sufficient evidence at trial to invoke the doctrine of res ipsa loquitur. We have examined the record carefully, focusing our attention primarily on defendant's contention that an 8-1/2 inch wire was present in Mrs. Hyder's body prior to the cutdown procedure performed on 6 October 1975. There is some merit to defendant's position inasmuch as Mrs. Hyder underwent a similar cutdown procedure on 6 August 1975. However, numerous X rays were taken of Mrs. Hyder's chest and abdominal area between 6 August and 6 October. Based on these X rays there is ample credible testimony from the physician who performed the first procedure, as well as from the hospital radiologist, that no foreign object, specifically an 8-1/2 inch wire, was then present in Mrs. Hyder's body. Between 6 October and 17 November no X rays were taken. The 17 November X rays and those taken subsequently show the radiopaque marker of the wire first within the upper chest area, then later in the abdominal area, and finally embedded in the liver. We are satisfied that defendant's evidence does not rebut these findings.
Where the plaintiffs have established, by credible proof, circumstances from which a reasonable mind might infer that the wire entered as a result of the 6 October cutdown, they are entitled to a res ipsa instruction unless defendant offers some explanation which as a matter of law destroys the probative force of these circumstances. A defendant's evidence in explanation has been held not to rebut the presumption arising under the doctrine of res ipsa, but merely to raise an issue for the determination of the jury. Moreover, where a defendant's negligence appears to be the more probable explanation of the injury, the plaintiff need not exclude all other persons who might possibly be responsible. See Mitchell, supra. See also Mondot v. Vallejo v. General Hospital, 152 Cal. App. 2d 588, 313 P.2d 78 (1957); Johnson v. Ely, 30 Tenn. App. 294, 205 S.W. 2d 759 (1947). We conclude that the presence of an 8-1/2 inch stainless steel wire embedded in Mrs. Hyder's liver, allegedly there as the result of a cutdown procedure performed by defendant, is so inconsistent with the exercise of due
care as to raise an inference of lack of care. Plaintiffs were therefore entitled to an instruction on the law of res ipsa loquitur.
In his charge to the jury, the trial judge instructed in part on the doctrine of res ipsa as follows:
[I]f an object such as a wire causes an injury and is shown to be under the exclusive control of the defendant and the incident is such as in the ordinary course of things does not happen if the party having it under his control uses the proper care, (the principle of res ipsa loquitor [ sic ], which means the thing speaks for itself, in such a case carries the question of negligence to the jury). [Parentheses ours.]
Plaintiffs take exception to this instruction in that it fails to material enclosed in parentheses: it furnishes or would be some evidence, in the absence of explanation of the defendant, that the accident arose from want of care, Lea v. Light Co., 246 N.C. 287, 98 S.E.2d 9 (1957); Pendergraft, ...