Funk v. Bonham’s Empirical Analysis

Citation profile

2 federal appellate · 51 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 55 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “A surgeon performing the delicate operation of deep surgery in the abdomen cannot assign details of the operation to those who assist him in the operation, unknown to the patient, and escape liability by delegating and relying upon such assistants to do and perform those acts which it was his duty to perform. And, although the proposition here contended for is supported by evidence that good surgery practice depended upon nurses to account for all instruments and sponges used, such expert evidence does not exonerate the surgeon as a matter of law, but such evidence is competent for a jury to consider in ascertaining the fact whether this surgeon was negligent in leaving the sponge in the cavity. The finding of negligence under such evidence is the sole province of the jury. A surgeon is charged, as a matter of law, with the duty to remove sponges used in the operation, which sponges will not be of use in the abdomen after the operation. Ordinary care and caution forbids a surgeon to delegate the absolute authority and responsibility to a nurse or nurses to account for sponges and to thus escape responsibility himself. Davis v. Kerr (1913) 239 Pa. 351 , 86 A. 1007 , 46 L.R.A. (N.S.) 611; Ault v. Hall (1928) 119 Ohio St. 422 , 164 N.E. 518 , 60 A.L.R. 128 ; Barnett’s Adrn’r v. Brand (1915) 165 Ky. 616 , 177 S.W. 461 .”

   1 later decision quote this exact passage
   e.g. Chi Yun Ho v. Frye

2. ““The testimony of experts is used most frequently by the defendants in malpractice cases to prove no lack of duty or skill. This is illustrated by the principle of law stated in the cited case of Blackburn v. Baker, supra, which would sustain the verdict upon the evidence in this case, to the effect that, the mere presence of the sponge in appellee’s abdomen, after the operation under consideration, standing by itself, suggests that proper surgical care had not been used; and that, under this state of facts shown by such evidence, the appellant here is required, to successfully meet the appellee’s evidence to sustain the complaint, to offer proof in explanation of his action. We believe that, in the case at bar, the necessity for expert testimony was a matter of defense, and that the rule of res ipsa loquitur applies, which put upon the appellant the burden of proving to the satisfaction of the jury, in order to present a complete defense, that he was not negligent in leaving the sponge in appellee’s abdomen.””

   1 later decision quote this exact passage
   e.g. 148 Ind. App. 508 - Klinger v. CAYLOR

3. “[the handling and placing of sponges in the body in an abdominal operation might be a matter which would depend upon expert testimony, but the failure to remove such sponges after the operation, they not being necessary for any use in the abdomen after the closing of the incision, was not a matter which depended solely upon expert testimony.”

   1 later decision quote this exact passage
   e.g. Stumph v. Foster