Franklin v. Toal
19 P.3d 834, 2000 OK 79, 2000 WL 1510075 (2001)
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Rule of Law:
When the evidence is undisputed that a surgeon unintentionally left a foreign object in a patient for no medical reason, the surgeon and the hospital are negligent as a matter of law. A hospital's compliance with industry custom does not excuse its failure to exercise ordinary care, especially when its own policies or staff acknowledge a higher standard of care is required.
Facts:
- In December 1995, Sarah Franklin was diagnosed with an atrial septal defect (a hole in her heart) and a chest deformity.
- On February 5, 1996, Dr. Kyle Toal performed open-heart surgery on Franklin at Norman Regional Hospital Authority to repair the defect.
- During the surgery, a large phrenic nerve pad was placed under Franklin's heart to protect a nerve and regulate temperature; the reminder cord on the pad had been removed per general practice.
- The hospital did not include this type of pad on its official surgical count list.
- After completing the heart repair, Dr. Toal forgot to remove the pad before closing the incision.
- Dr. Toal later admitted it was his duty to remove the pad, there was no medical reason to leave it in, it was not a matter of judgment, and he simply forgot.
- About two and a half weeks after the surgery, Franklin developed symptoms, and x-rays revealed the retained pad.
- On March 1, 1996, Dr. Toal performed a second surgery on Franklin to remove the pad, after which she experienced emotional and psychological problems.
Procedural Posture:
- Sarah J. Franklin filed a medical malpractice suit against Dr. Kyle Toal and Norman Regional Hospital Authority in an Oklahoma district court (trial court).
- The trial court denied Franklin's motion for a directed verdict at the conclusion of the trial.
- The jury returned verdicts in favor of both defendants, Dr. Toal and the Hospital.
- The trial court then denied Franklin's motion for judgment notwithstanding the verdict or, in the alternative, a new trial.
- Franklin (appellant) appealed the judgment to the Oklahoma Court of Civil Appeals (intermediate appellate court).
- The Court of Civil Appeals affirmed the trial court's judgment, holding there was competent evidence to support the jury's verdict.
- Franklin then appealed to the Supreme Court of Oklahoma.
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Issue:
Does a surgeon's admitted failure to remove a surgical pad from a patient's chest, for which there was no medical reason for retention, and the hospital's failure to include the pad on its surgical count list, constitute negligence as a matter of law?
Opinions:
Majority - Hodges, J.
Yes. A surgeon's admitted failure to remove a surgical pad from a patient's chest for which there was no medical reason for retention, and the hospital's failure to include the pad on its surgical count list, constitute negligence as a matter of law. The court reasoned that all elements of negligence were established without controversy. Dr. Toal had a duty of ordinary care, and he and his expert witness admitted that failing to remove the pad was a breach of that duty which directly caused Franklin's injury. Dr. Toal's admission that he 'simply forgot' and that no medical judgment was involved left only one reasonable inference: he was negligent. Similarly, the Hospital had a duty of ordinary care, which its own staff testified included counting everything placed inside a patient. The Hospital's failure to include the pad on its count list was a breach of this self-professed duty, and its reliance on industry guidelines was not a valid legal excuse, as compliance with custom does not conclusively establish due care.
Analysis:
This decision clarifies that while medical malpractice cases often present questions of fact for a jury, certain acts, like leaving a foreign object in a patient by mistake, are so clearly a breach of the duty of ordinary care that they constitute negligence as a matter of law. It signals to courts that they can and should grant directed verdicts in such clear-cut cases, preventing a jury from reaching a verdict contrary to the undisputed evidence. The ruling also serves as a strong reminder to healthcare institutions that merely adhering to industry customs is not a complete defense against negligence if those customs are insufficient to meet the standard of ordinary care.
