[4] Inadvertently leaving a foreign object in the body of a patient is sufficient to support an inference of negligence. Conrad v. Lakewood Gen. Hosp., 67 Wn.2d 934, 937, 410 P.2d 785, 10 A.L.R.3d 1 (1966); McCormick v. Jones, 152 Wn. 508, 511, 278 P. 181, 65 A.L.R. 1019 (1929); Nelson v. Murphy, 42 Wn.2d 737, 739-40, 258 P.2d 472 (1953) (dictum); Wharton v. Warner, 75 Wn. 470, 475, 135 P. 235 (1913); Wynne v. Harvey, 96 Wn. 379, 384, 165 P. 67 (conceded by doctor), aff'd, 99 Wn. 693, 168 P. 896 (1917); Annot., Malpractice: Liability of Physician, Surgeon, Anesthetist, or Dentist for Injury Resulting From Foreign Object Left in Patient, 10 A.L.R.3d 9, § 3 (1966). Consequently, the evidence in this case supports an inference that someone was negligent.
The same result has been reached in many other cases, too numerous to discuss at length. Engelking v. Carlson, 13 Cal.2d 216, 88 P.2d 695 (nerve in leg severed during an operation); Farber v. Olkon, 40 Cal.2d 503, 254 P.2d 520, 524; Sanders v. Smith, 200 Miss. 551, 27 So.2d 889 (death shortly after a tonsillectomy); Quinley v. Cocke, 183 Tenn. 428, 192 S.W.2d 992; Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472. This principle has been specifically applied to the state of facts involved in the case at bar, namely, a bone fracture sustained during the administration of a shock treatment for a mental disorder.
Davis relies on Nelson v. Murphy to argue that expert testimony was unnecessary here because it is within the layperson's common sense and knowledge that Anne's death resulted from UWMC's denial of artificial nutrition and hydration, and UWMC's alleged delay in the transfer of her medical records postponed essential treatment, risking her life. 42 Wn.2d 737, 258 P.2d 472 (1953).
While he is competent to testify about the effects of the alleged condition—that he was unable to urinate during the drug tests—the "cause of such a condition is a medical question . . . not within the certain knowledge of laymen," and "must be proved by expert testimony." Nelson v. Murphy, 42 Wash. 2d 737, 740 (1953); see also Frisone, 270 F.2d at 403 (citations omitted); Felkins v. City of Lakewood, 774 F.3d 647, 651-52 (10th Cir. 2014) (citing Fed. R. Evid. 701). Accordingly, Heit cannot rely on his testimony alone to raise a genuine dispute of fact about whether he actually suffers from paruresis.
Mr. Traversie's response to defendants' motion for summary judgment relies on the doctrine of res ipsa loquitur to prove negligence, asserting expert testimony is not necessary to prove his negligence claim because "[t]he duty to keep a patient free from injuries that are not medically necessary or related to the procedure to which they have agreed to undergo is undoubtedly 'within the general knowledge of laymen.' " (Docket 53 at pp. 6-7) (quoting Nelson v. Murphy, 258 P.2d 472, 474 (Wash. 1953). Several state courts have held post-operative care is not within the common knowledge of laymen.
See Appendix A.[2] Under circumstances proper to its application, res ipsa loquitur generally does apply to physicians and hospitals. Douglas v. Bussabarger, 73 Wn.2d 476, 438 P.2d 829 (1968); Leach v. Ellensburg Hosp. Ass'n, Inc., 65 Wn.2d 925, 400 P.2d 611 (1965); Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967); Horner v. Northern Pac. Beneficial Ass'n Hosps., Inc., 62 Wn.2d 351, 382 P.2d 518 (1963); Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953); Annot., 51 A.L.R.2d 970 (1957). When a proper case is generally made out for res ipsa loquitur, so far as we know the doctrine is under no taboos as to subject matter and may be invoked without regard to the nature of the events upon which liability is asserted if the facts and circumstances shown at trial would otherwise warrant it.
These issues are questions of law. See Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). The requested instruction reads: "It is for you the jury to determine whether the manner of injuries sustained by Crystal Zukowsky, and the attendant circumstances connected therewith, are of such a character as would in your judgment, warrant an inference that the injury would not have occurred had due diligence in care been exercised by the defendant.
The principal problem remaining then is whether the injury was so extraordinary as to warrant an inference that it would not occur under these circumstances but for someone's negligence. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472. Granting exclusive control of the instrumentality and eliminating voluntary participation or contribution by respondent to the acts producing the injury, we feel that negligence may then be inferred in three situations without affirmative proof thereof: (1) When the act causing the injury is so palpably negligent that it may be inferred as a matter of law, i.e., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a wrong member; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries. [3] We are of the opinion that the case at bar falls within both the second and third situations.
Those situations in which common knowledge of laymen has afforded a proper basis for invoking res ipsa loquitur in medical malpractice actions are summarized in Prosser, Law of Torts (2d ed.), pp. 210, 211, sec. 42, as follows: Lyu v. Shinn (1953), 40 Haw. 198; Merker v. Wood (1948), 307 Ky. 331, 210 S.W.2d 946; Sanzari v. Rosenfeld (1961), 34 N.J. 128, 167 A.2d 625; Robinson v. Wirts (1956), 387 Pa. 291, 127 A.2d 706; and Nelson v. Murphy (1953), 42 Wn.2d 737, 258 P.2d 472.Wallstedt v. Swedish Hospital (1945), 220 Minn. 274, 19 N.W.2d 426, and Donaldson v. Maffucci (1959), 397 Pa. 548, 156 A.2d 835.
Therefore, if the evidence establishes malpractice on the part of Dr. Ross, it must be under the exception to the rule, i.e., that his negligence in continuing the operation was "so grossly apparent that a layman would have no difficulty in recognizing it." See Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). Of this phase of the case, the trial judge said in his oral opinion: