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Miller v. Jacoby8/28/2000
Mary Lou Miller sued two physicians and their employer for medical malpractice when a portion of a Penrose drain remained in her body following surgery. The drain was deliberately placed in the surgical wound to facilitate postoperative healing but was not completely removed before the patient was discharged. Miller offered no expert testimony to prove that the physicians' actions were negligent. After carefully reviewing the facts presented in this case, we conclude that without expert testimony, a layperson could not determine whether the physicians failed to act in a reasonably prudent manner. Therefore, we affirm the trial court's summary judgment dismissal of the claims.
FACTS
On January 30, 1997, Miller underwent surgery for the removal of kidney stones. Dr. Robert Ireton performed the surgery at Northwest Hospital. Before completing the surgery, Dr. Ireton placed a one-half inch Penrose drain in the wound to facilitate post-operative healing. A Penrose drain is a soft piece of tubing placed in a wound to drain fluid.
Dr. Ireton ordered the drain to be removed some days following surgery. When the nurse on duty, Leslie Rockom, attempted to remove the drain, she felt resistance and told Miller that the drain "wouldn't come out," and that she would call a doctor to remove it. In a deposition, Rockom estimated that since 1965 she has cared for approximately 100 patients with Penrose drains and that probably only five drains resisted removal to the degree that she called in a physician. Miller later testified that she felt pain when Rockom tried to pull out the drain.
Dr. Karny Jacoby responded to Rockom's request for help in removing the drain. Rockom informed Dr. Jacoby that she tried to pull out the drain and that she met resistance, causing pain. Dr. Jacoby then proceeded to remove the drain. She later testified that she had no difficulty in removing the drain and thus did not think it necessary to examine the drain in detail. Miller claimed, however, that after Dr. Jacoby removed the drain, she stated, "I hope I got it all."
Miller was discharged on February 3, 1997. She continued to suffer pain in her right side and swelling in her abdominal area. After two follow-up appointments, Dr. Ireton discovered on April 29, 1997, that a portion of the drain remained in the area of the surgical site. Miller consulted with a different physician for the removal of the drain, Dr. Robert Weissman, who performed a second surgery on May 23, 1997. According to Dr. Weissman's operative report, the end of the drain that he removed was angular, ragged, and irregular, "possibly representing where the drain broke off." Dr. Weissman indicated, however, that Miller's complaints of pain and swelling after the first surgery were probably unrelated to the presence of the drain.
On June 9, 1998, Miller sued Dr. Ireton, Dr. Jacoby, and Northwest Hospital for medical malpractice. Dr. Jacoby obtained a deposition from Dr. Wayne Weissman, a urologist, in which he testified that Dr. Jacoby's actions in removing the drain conformed to the standard of care. He further testified that "{g}iven the fact that one end of the Penrose drain removed {in the second surgery} was ragged and irregular, it is highly likely that the Penrose drain was inadvertently sutured in place, deep within the wound, beneath the muscle layers." Dr. Weissman stated that suturing a Penrose drain in place "deep within the wound" did not comport with common practice. 'It is the usual and customary practice to lay the Penrose drain in place, deep within the wound, and only secure the drain with a single superficial suture at the skin level. The procedure to remove a Penrose drain involves
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