
    No. 332
    SAMUEL B. McGUIRE v. DELPHIA MANLEY and HARRISON A. COLEMAN
    No. 18467.
    Supreme Court of Ohio
    On Motion to Require Tuscarawas Appeals to Certify
    Docketed April 2, 1924.
    2 Abs. 226
    921. PHYSICIAN AND SURGEON — Negligence in Surgical Operation.
    Attorneys — Wilkins, Fernsell & Fisher, New Philadelphia, for McGuire and Coleman; Lee J. Myers, Akron, and Bowers and Bowers, New Philadelphia, for Manley.
   This action was commenced in the Tusca-rawas Comimon Pleas, by Delphia Manley, against Harrison A. Coleman and Samuel B. McGuire, for damages claimed to have been sustained by her through an operation for ectopic pregnancy in which it was claimed that Coleman and McGuire negligently sewed up and left a gauge string or sponge in her abdomen.

Coleman had performed the operation and McGuire had been his assistant. The case was tried in the Common Pleas and submitted to the jury, and a verdict rendered in favor of the doctors. Manley carried the case to the Court of Appeals, which held that there was error in the charge of the Common Pleas Judge to the jury, and ordered a new trial. McGuire now asks the Supreme Court to reverse the Court of Appeals.

These errors present the questions: Whether the trial court erred in charging the jury as to the liability of Dr. McGuire, as the assistant of Dr. Coleman, as to the degree of care and skill that Dr. Coleman was required to exercise in the operation, as to his duty to search for and remove the sponge from the abdomen, and as to his being prevented or excused from making a thorough search for the sponge on account of the serious condition of the patient after the operation.

They also present the question whether the court erred in refusing to charge that a failure to remove the gauze, if the jury found there was such a failure, would be negligence, and if the plaintiff suffered any damage as the proximate result of the negliegence, the verdict should be for the plaintiff. The question is also raised as to whether the record shows that any sponge was left in the abdomen.

Plaintiffs in error claim that the Court of Appeals erred in reversing the judgment of the Common Pleas, and remanding the cause for a new trial. - -

It is claimed by them that the Supreme Court has jurisdiction to review the case on account of the questions presented, as follows:

1. The doctrine of respondeat superior as defined by this court and the Supreme Court of Michigan has been challenged by the Court of Appeals.

2. The rule of negligence as defined by this court, 67 OS. 106-8, has not been adhered to and followed by the Court of Appeals.

3. The legal relation between a surgeon and his assistant to the patient during an operation is involved.

4. The legal relationship between a surgeon and his assistant during the operation is involved.  