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Bauer v. White5/13/1999
This medical malpractice case pits the apparent categorical requirement of RCW 4.24.290 and RCW 7.70.040 for expert testimony to support a medical negligence claim against the long standing Washington rule that unintentionally leaving a foreign object in a surgical patient is negligence per se. McCormick v. Jones, 152 Wash. 508, 278 P. 181, 65 A.L.R. 1019 (1929). Dr. Travis White inadvertently left a 2"-inch pin in Margaret Bauer's tibia. Dr. White's expert opined that no standard of care required him to account for the pins following surgery. Mrs. Bauer did not respond with a contrary expert opinion. The trial Judge granted Dr. White's summary Judgement motion and dismissed the complaint. The question here is whether a patient must present an expert medical opinion that unintentionally leaving a foreign object in a surgical patient violates the standard of care for physicians in this state. We conclude that she need not, and reverse and remand for trial on the issues of causation and damages.
FACTS
History.
Mrs. Bauer suffered from degenerative arthritis and a torn medial meniscus in her left knee. Dr. White performed a knee arthroplasty on April 8, 1992. He replaced Mrs. Bauer's left knee with a prosthetic knee (tibial prosthesis).
In order to position the tibial prosthesis, Dr. White positioned a provisional template over her knee. To do so, he drilled holes in the leg and inserted 2"-inch metal positioning pins to hold a drill. These pins were not intended to remain in the patient. Dr. White was responsible for the placement of the pins, but an assisting physician and two surgical technicians had access to the surgical field.
Once aligned, Dr. White drilled a one-half inch canal down the shaft of the tibia into the medullary canal of the tibia. An extension of the tibial prosthesis rested in this canal. He then permanently glued the prosthesis into place.
Following the surgery and after the wound was closed, Dr. White x-rayed Mrs. Bauer's leg. He discovered that one of the metal positioning pins had fallen into the tibial medullary canal. The glue holding the prosthesis had already hardened. Dr. White did not count the pins before closing the surgical wounds. He does not know how the pin ended up in Mrs. Bauer's leg. And more than one person in the operating room handled the positioning pins.
Later Mrs. Bauer began to complain of pain, swelling, and heat in her left knee and tibia. She attributed the symptoms to the pin; Dr. White disagreed. She asked him to remove the pin. He did on December 16, 1992.
Mrs. Bauer continued to complain about her leg even after Dr. White removed the pin. He evaluated each complaint but could not find any objective symptoms other than those he would normally expect to follow arthroplasty surgery. He also referred Mrs. Bauer to seven other physicians for evaluation. None could find any problem attributable to the pin or the surgery to remove it.
Procedure.
Mrs. Bauer and her husband sued Dr. White. They alleged negligence. The Bauers sought compensation for the second surgery, for pain and suffering associated with the second surgery and for the scar from the second surgery.
Both parties moved for summary Judgement. Dr. White supported his motion with the deposition of Dr. William Lanzer. Dr. Lanzer did not know of any surgical team that counted positioning pins. He therefore concluded that Dr. White did not breach any standard of care because none exists. The Bauers argued that Dr. White was negligent as a matter of law. The Bauers' expert, Dr. Richard Goodman, responded that "it is a deviation from the standard of
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