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Breaux v. Thurston12/30/2003
pects of that standard. If the surgeon does so, the main opinion suggests, "a jury question is presented as to whether the surgeon was in fact negligent." __ So. 2d at __.
If " he presence of the retained object does not, however, establish negligence per se," that is, if something more than the presence of a retained object is required to establish negligence, then the plaintiff must present substantial evidence indicating that the surgeon did not fully comply with all aspects of the standard of care or there would be no question of fact for the jury to consider. To allow otherwise would, in effect, be to declare retention of a retained object to be negligence per se, that is, that no further evidence is required.
JOHNSTONE, Justice (concurring in the rationale in part but dissenting from the judgment).
I concur in the main opinion in its explanation and reconciliation of Powell v. Mullins, 479 So. 2d 1119 (Ala. 1985), Ravi v. Williams, 536 So. 2d 1374 (Ala. 1988), Northeast Alabama Regional Medical Center. v. Robinson, 548 So. 2d 439 (Ala. 1989), and Ravi v. Coates, 662 So. 2d 218 (Ala. 1995). I further concur in the holdings of the main opinion to the effect that the evidence in this case presents issues of fact to be decided by the fact-finder -- the jury in this case.
I respectfully dissent, however, from the conclusion that the jury charge "was sufficiently confusing as to deprive the jury of opportunity" "to consider and believe either side's evidence." I therefore respectfully dissent from the judgment of reversal.
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