McDONOUGH v. FREUND, Mo., Judgment, Law, casemine.com

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GANTT, J.

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EDWARD McDONOUGH v. DOCTOR NEWTON M. FREUND, Appellant.

Watts Gentry and Wm. H. Woodward for appellant.

(1) (a) The court erred in overruling the defendant's demurrer to the evidence for the reason that plaintiff did not sustain the burden of showing causal connection between any act of defendant and the spread of infection, if affirmatively appearing that the infection might spread from perfectly natural causes. Goransson v. Mfg. Co., 186 Mo. 300; Sabol v. Cooperage Co., 282 S.W. 429; Purcell v. Shoe Co., 187 Mo. 276; Kane v. Railroad, 251 Mo. 13; Nevinger v. Haun, 196 S.W. 39; Spain v. Burch, 154 S.W. 172; Coffee v. Tiffany, 192 Mo. 455; Ewing v. Goode, 78 F. 442. (b) The testimony of both the plaintiff and his witness, Westerman, was so contrary to all human experience as to be unbelievable. Where the physical facts demonstrate clearly and positively that plaintiff's testimony cannot possibly be true, the court is not warranted in treating such testimony as having any probative value whatever, but must entirely disregard it. Miller v. Schaff, 228 S.W. 491; Cadwell v. Stove Co., 238 S.W. 415; Alexander v. Ry. Co., 233 S.W. 44, 289 Mo. 599; Phippin v. Ry. Co., 196 Mo. 321; Sexton v. Ry. Co., 245 Mo. 254; Nugent v. Milling Co., 131 Mo. 241; Giles v. Ry. Co., 169 Mo. App. 24; Schupback v. Meshevsky, 300 S.W. 465; Steele v. Ry. Co., 265 Mo. 115; Flack v. Railroad, 224 S.W. 421; Lindsey v. Shaner, 236 S.W. 322. (2) The court erred in giving Instruction 1 at the request of the plaintiff. The vice of this instruction was twofold: (a) It submitted to the jury the alleged negligent act of the defendant in cutting the artery, and the alleged negligent omission on his part to tie the artery, when there was no evidence of any causal connection between either the cutting of the artery or the failure to tie the artery, and the spread of the infection. Causal connection must be shown between a negligent act or omission and injury to the plaintiff before he is entitled to have his case submitted to the jury. Coffey v. Tiffany Howard, 192 Mo. App. 455; Ewing v. Goode, 78 F. 442; Nevinger v. Haun, 197 Mo. App. 416. (b) It gave the jury a roving commission to guess at anything or everything which they might conclude that the defendant could have done by way of taking proper steps or measures to arrest the progress of infection. The instruction was, therefore, much broader than the evidence. It should have been limited to the particular means or methods which plaintiff's expert claimed should have been used to arrest the infection. Any instruction that is broader than either the pleadings or the evidence is erroneous. Sommers v. Transit Co., 108 Mo. App. 319; Mulderig v. Railroad, 116 Mo. App. 655; Boles v. Dunham, 208 S.W. 480; Stid v. Railroad, 236 Mo. 382; Comiter v. Mfg. Co., 266 S.W. 340; Allen v. Railroad Co., 294 S.W. 80. (3) Instruction 2, given at the request of the plaintiff, contained two glaring errors. (a) The first error was that it was so worded as to permit plaintiff to recover damages for all pain suffered by him by reason of his injuries, without reference to whether such injuries were necessarily caused by the lancing of his boil or carbuncle (and all of the evidence showed that it was necessary to lance it) or whether it was caused by negligence on the defendant's part. In a suit for damages for malpractice a physician or surgeon is liable only for such damages as result from his negligence, and not for damages of any kind (including pain and suffering) brought about by causes independent of negligence on the part of the physician or surgeon. Carpenter v. McDavitt, 53 Mo. App. 393; Fowler v. Burris, 186 Mo. App. 347; Hill v. Jackson, 265 S.W. 859; McDonald v. Crider, 272 S.W. 980; Mernis v. Cory, 79 P. 174. (b) The instruction contained the old, old error on account of which so many cases have had to be reversed, to-wit, it permitted recovery for an item of damages not supported by the evidence, for the second paragraph in the instruction permitted recovery "for the reasonable expense for medical attention, if any, which the plaintiff has necessarily incurred and become obligated for by reason of his injuries, if any, and directly caused thereby." There is not a word in the entire record tending to show the value of any services performed by any physician or surgeon in rendering treatment to the plaintiff at any time. For this palpable error a new trial will have to be granted, if the case is not reversed outright. Ilgers v. Transit Co., 102 Mo. App. 529; Rhodes v. City of Nevada, 47 Mo. App. 499; Smith v. Railroad, 108 Mo. 243; Robertson v. Railway Co., 152 Mo. 382; Duke v. Ry. Co., 99 Mo. 347; Nelson v. Railroad Co., 113 Mo. App. 659; Gibler v. Term. Railroad Assn., 203 Mo. 208; Morris v. Ry. Co., 144 Mo. 500; Tyon v. Ry. Co., 232 S.W. 786; Davis v. Davis, Director General, 235 S.W. 182.

John A. Witthaus for respondent.

(1) (a) The court properly overruled defendant's demurrer to the evidence and submitted the case to the jury, for the reason that in passing on the demurrer plaintiff is entitled to have all the testimony which is favorable to him considered as true and should be allowed every reasonable inference to be drawn therefrom; and when plaintiff in this case is given the benefit of the favorable testimony and such reasonable inferences, there is ample testimony to submit the case to the jury on each of the specifications of negligence submitted and of the causal connection between said acts of negligence and the spread of infection, and testimony of expert witnesses that such infection might spread form natural causes presented a question for the decision of the jury. McDonald v. Railway Co., 219 Mo. 468; Krinard v. Westerman, 239 Mo. 689; Reeves v. Lutz, 179 Mo. 64; Grainger v. Still, 187 Mo. 197; Telaneus v. Simpson, 12 S.W.2d 920; McClarin v. Grenzfelder, 147 Mo. App. 478; Cazzell v. Schofield, 8 S.W.2d 586; Dorkery v. Woodsmall, 11 S.W.2d 1057; Zumwalt v. Railroad, 266 S.W. 717; Maginnis v. Railroad, 268 Mo. 667; Stauffer v. Railroad, 243 Mo. 305; Downing v. Biscuit Co., 8 S.W.2d 884; Evans v. Wheel Co., 273 S.W. 749; Eichholz v. Poe, 217 S.W. 284. (b) The claim that the testimony of both the plaintiff and Dr. Westerman are so contrary to all human experience as to be unbelievable and is therefore without probative value cannot be sustained because the rule which defendant tries to invoke requires that the testimony attached must be in violation of some physical or natural law. The testimony objected to is not in conflict with any law of physics or nature. Miller v. Schaff, 228 S.W. 488; Turk v. Endsley, 1 S.W.2d 1038; Kibble v. Railroad, 285 Mo. 603; Scroggins v. St. Railway, 138 Mo. App. 215; West v. Duncan, 249 S.W. 127; Holland v. St. Railway, 157 Mo. App. 481. (2) The court did not err in giving Instruction 1 at the request of plaintiff. (a) The claim that said instruction "submitted to the jury the alleged negligent act of the defendant in cutting the artery and the alleged negligent omission on his part to tie the artery, when there was no evidence of any causal connection between either the cutting of the artery or the failure to tie the artery and the spread of the infection" cannot be sustained for two reasons: for the reason (a) that there was ample evidence to sustain this instruction, and (b) for the reason that the issues here complained of by defendant were submitted to the jury by defendant's Instruction 3. Where both parties present the same issue to the jury by their instructions, neither party can complain, for if error was committed, it was common to both parties and therefore not reversible. Gary v. Averill, 12 S.W.2d 747; Von Eime v. Fuchs, 8 S.W.2d 827; Smart v. Kansas City, 208 Mo. 204; Securities Inv. Co. v. Shoe Co., 5 S.W.2d 682; Spencer v. Railroad, 297 S.W. 353; Timmermann v. Iron Co., 1 S.W.2d 791; Alexander v. Grocery Co., 7 S.W.2d 370. (b) The contention that the instruction "gave the jury a roving commission to guess at anything or everything which they might conclude that the defendant could have done by way of taking proper steps or measures to arrest the progress of infection cannot stand because the instruction requires the jury to base any finding on a belief from the evidence. The instruction required a definite finding of the specific negligence charged and was within both the pleadings and the evidence. Morris v. Railway Co., 8 S.W.2d 14; Riley v. Independence, 258 Mo. 683. (3) (a) The plaintiff was entitled to recovery for injury resulting from the course and manner of treatment complained of. No other injury was before the jury except such injury as resulted from the negligent treatment of defendant, and although it might have been proper to cut the boil it was negligence to do it in an improper manner, and the sole injury, with accompanying pain, etc., was the result of the improper doing of an act proper to be done and an instruction authorizing recovery for such injury is not error. Carpenter v. McDavitt Cottingham, 53 Mo. App. 393. (b) The portion of the instruction on the measure of damages permitting a recovery "for the reasonable expense for medical attention, if any, which the plaintiff has necessarily incurred and become obligated for by reason of his injuries, if any," although no evidence of the reasonable value of the medical services rendered plaintiff is produced, is not reversible error for the following reasons: First. There is undisputed evidence to show that medical services were rendered to plaintiff, and where such services were rendered, even though there is no evidence to show payment nor an express contract to pay the physicians rendering such service, the law will imply an obligation to pay, because the services were rendered and the plaintiff is therefore entitled, as a matter of law, to recover at least nominal damages for the medical services so rendered, and if, as defendant insists, the evidence was indefinite as to the exact amount of such expense, the sole fault to be found with the instruction is that it failed to limit plaintiff's recovery for this item to a nominal sum. Consequently, the general rule becomes applicable that the mere generality of an instruction on the measure of damages, if it is good as far as it goes, is not reversible error, but that the remedy of the complaining party is to ask an instruction setting forth the proper express limitations and qualifications. Bishop v. Plating Works, 3 S.W.2d 260; Smith v. Mederacke, 259 S.W. 88; Herndon v. Springfield, 137 Mo. App. 513; Johannes v. Laundry Co., 274 S.W. 379; Hoover v. Railway Co., 227 S.W. 77; State ex rel. v. Reynolds, 257 Mo. 19; Sang v. St. Louis, 254 Mo. 454. Second. That error to be reversible must be error materially affecting the merits of the action and reversible error excludes the consideration of any error or defect not affecting the substantial rights of the complaining party. Where the undisputed evidence shows a loss in wages in excess of $2,000, and the verdict and judgment were for $10,000, leaving only $2,000, after deducting the loss in wages, to compensate plaintiff for a severe and painful injury and a permanently stiff and crippled hand and wrist, the giving of an instruction permitting, among other things, a recovery for the reasonable expense of medical attention, if any, which the plaintiff necessarily incurred, although there is no evidence of the reasonable value of such medical services, if error at all, was not such error as affected the substantial rights of the defendant, and was, therefore, harmless and not reversible. Shinn v. United Railways, 154 S.W. 103; Sang v. St. Louis, 254 Mo. 454; Abbitt v. Transit Co., 104 Mo. App. 534; Sherwood v. Railways Co., 132 Mo. 339.

1. DEMURRER: Malpractice: Substantial Evidence. A demurrer cannot be sustained where there is substantial evidence to sustain all the grounds of negligent malpractice alleged.

2. MALPRACTICE: Negligent Acts: Cause of Action. In lancing a boil or carbuncle on the under side of the wrist, to cut the radial artery crosswise; to use an unsterilized knife in the lancing, whereby infection is caused; to make openings on the top of the swollen hand, and to use only packs of bichloride of mercury in the openings to arrest the spread of the infection, are all negligent acts, where there is substantial proof that all said acts are not good practice and that better methods are available.

3. ____: Cutting Artery: Demurrer. Plaintiff had a boil or carbuncle on the under side of his right arm an inch and a half above the wrist joint. He alleged that defendant, a physician, in opening the boil negligently cut and failed to tie the radial artery. There was evidence tending to prove that the boil was located over the radial artery and its branches; that defendant, after making incisions in the boil, stated that he had cut an artery; that the scar on plaintiff's arm is directly over the radial artery, and if an artery was cut at the point of the scar it was the radial artery; that the cutting should have been lengthwise, whereas the scar indicates it was crosswise; that a cross cut tended to increase the risk of cutting the artery; that it is bad practice to cut an artery in lancing a boil or carbuncle; that several incisions were made, and defendant jerked or twisted the knife in making them; that the cutting of an artery would be very disastrous, because the blood supply to the hand would be diminished and the hand made more susceptible to the spread of infection; that if the radial artery is cut an attempt should be made to tie it if the bleeding point can be seen, and that defendant made no attempt to tie the cut artery, claiming the use of a tourniquet and packing was better practice. Held, ample evidence to support the charge, and the demurrer was properly overruled.

4. ____: Producing Infection: Unsterilized Knife: Demurrer. The plaintiff alleged that defendant, a physician, in treating a boil on the under side of his wrist, negligently caused infection in the wrist and hand. The evidence tended to show that neither was swollen or infected at the time he became a patient of defendant; that defendant, in making incisions in the boil, used an unsterilized knife, which a good surgeon would not do; that a few days later the hand and wrist began to swell and continued to do so as the infection spread; that after defendant opened the boil, he probed the opening for about three-quarters of an hour with forceps in an effort to catch the end of the radial artery he had cut and to tie it up; and that such probing tends to break through nature's wall inclosing the infection, thereby permitting it to spread, and should not be done unless the bleeding point of the cut artery can be seen. Held, that this evidence is substantial that defendant negligently caused infection in plaintiff's wrist and hand.

5. ____: Arresting Infection: Demurrer. The petition alleged that there was a boil on the under side of plaintiff's wrist, and that the defendant, a physician, in opening the boil, negligently failed to arrest the progress of the infection. The evidence tended to prove that the defendant, in making incisions in the boil, used an unsterilized knife and cut the radial artery; that the cutting of the radial artery diminishes the supply of blood to the hand and increases the spread of infection in the hand; that, a few days after defendant began to treat plaintiff, the hand was badly swollen, and that defendant made two openings on top of the hand from the wrist down, put in gauze in the openings for drainage purposes and applied a bichloride of mercury pack; that each morning he removed the pack and gauze, cleaned the wound, provided some kind of drainage, repacked the wound and bandaged the arm; that this method of treatment continued for nearly two months, when defendant went on a vacation, and directed plaintiff to another doctor for treatment; that said other doctor applied additional drainage for the infected area, by making additional openings through the hand, inserting rubber tubing and treating the hand with hot salt solutions; that during the ten days of this treatment the spread of the infection was resisted and the swelling greatly reduced; that the drainage provided by the defendant was not adequate, and if proper drainage had been provided the infection would not have spread and the bones in the wrist and hand would not have become involved; that the use of a pack of bichloride of mercury was not proper treatment; that the hand should have been treated with hot salt solutions and hot packs to stimulate the blood supply and thereby assist in counteracting infection; that all loose and dead bone should have been removed; and that during the time of defendant's treatment the hand was swollen to more than twice its normal size, and the bones of the hand were involved as a result of inadequate drainage. Held, that the evidence is substantial that defendant negligently failed to arrest the progress of the infection. 6. INSTRUCTION: Damages: Medical Attention: Reasonable Expense. There being evidence that plaintiff was in the hospital for several weeks and was treated by several physicians, an instruction to allow for medical attention is good as a general instruction on that element of damage; and if defendant wishes the recovery on this element to be limited to nominal damages his duty is to tender an instruction to that effect. But an instruction to allow plaintiff reasonable expense for medical attendance is not a general instruction, and if such an instruction is given, one for defendant limiting the recovery to nominal damages would be inconsistent and should not be given.

7. ____: ____: ____: Value: Presumption: Speculation. The jury cannot be presumed to know the value of the services of six physicians or surgeons who not only treat plaintiff but operate upon him several times. Nor can it be presumed, where the verdict was for $10,000 and the evidence tends to show a loss of wages amounting to $8,000, and the jury were instructed to allow plaintiff for medical attention, and there was no evidence as to the value of their services, that the amount of the verdict is absorbed by elements of damage well proven, where it is impossible under the evidence to determine the time lost by plaintiff as a result of the injury.

Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., Section 3013, p. 1031, n. 31. Trial, 38 Cyc., p. 1516, n. 57.

GANTT, J.

Action for damages for malpractice. Plaintiff is a hod-carrier and defendant a physician; both reside in St. Louis, Plaintiff was afflicted with a boil or carbuncle, located on the under side of the right arm, one and one-half inches above the wrist. On June 19, 1922, he went to the office of defendant for treatment, and defendant undertook to treat the boil or carbuncle. Infection spread into the wrist and hand, involving the bones and leaving the hand badly crippled.

It is charged the defendant in opening the boil (a) negligently cut and failed to tie the radial artery; (b) negligently caused infection in the wrist and hand; and (c) negligently failed to arrest the progress of the infection. The answer is a general denial. The case was submitted to the jury on these charges. Judgment was for $10,000, and defendant appealed.

Defendant contends the demurrer to the evidence at the close of the case should have been sustained.

(a) There is evidence tending to show the boil or carbuncle was located over the radial artery and its branches, and that defendant, after making the incisions, stated he had cut an artery; that the scar on plaintiff's arm is directly Cutting over the radial artery, and if an artery was cut at the Artery. point of the scar it was the radial artery; that the cutting should have been lengthwise whereas the scar indicates it was crosswise, which tended to increase the risk of cutting an artery; that it is bad practice to cut an artery when lancing a boil or carbuncle; that there were several incisions made, and defendant jerked or twisted the knife while making them; that the cutting of an artery would be very disastrous, because the blood supply to the hand would be diminished and the hand made more susceptible to the spread of infection.

There is also evidence tending to show that if the radial artery is cut an attempt should be made to tie it if the bleeding point of the artery can be seen. Defendant testified he made no attempt to tie the artery cut, claiming it was better practice to use a tourniquet and packings.

This is ample evidence to support the charge that defendant negligently cut and failed to tie the artery, and that such negligence contributed to the injury by diminishing the resistance to infection. This conclusion also rules the same contention lodged against instruction numbered 1.

(b) There is evidence tending to show that defendant made the incisions with an unsterilized knife which might cause a poisonous condition, and that a good surgeon would not do it. There is also evidence tending to show that plaintiff's wrist and hand were not swollen and infected at the time he Causing became a patient of defendant; that a few days Infection. thereafter his hand and wrist began to swell and continued to do so as the infection spread; that after defendant opened the boil or carbuncle he probed the opening for about three-quarters of an hour with forceps, endeavoring to catch the end of the artery and tie it; that such probing would tend to break through nature's wall inclosing the infection, thereby permitting the infection to spread, and that it should not be done unless the bleeding point of the artery can be seen.

Defendant testified that he did not use an unsterilized knife; that he inserted tweezers into the opening to allow a free outlet for pus and probed with a metal probe for hidden pockets of pus; that it is not good practice to tie an open artery because it might cause too much handling, and that it is easier to pack the wound.

This is substantial evidence tending to show that defendant negligently caused infection in the wrist and hand.

(c) There is evidence tending to show that a few days after defendant commenced to treat plaintiff the hand was badly swollen, and defendant made two openings on top of Arresting the hand from the wrist downward, put gauze in the Infection. openings for drainage purposes and applied a bichloride of mercury pack; that each morning defendant removed the pack and gauze, cleansed the wound, provided some kind of drainage, repacked the wound and bandaged the arm; that this method of treatment continued until defendant went on a vacation, about the middle of August, when he directed plaintiff to Dr. Clancy for treatment; that Dr. Clancy, upon an examination of plaintiff, informed him that he should not be walking the streets, but should be in a hospital; that plaintiff did go to a hospital, and Dr. Clancy there provided additional drainage for the infected area by making additional openings through the hand, inserting rubber tubing and treating the hand with hot salt solutions; that during the ten days he was treated by Dr. Clancy the spread of the infection was resisted and the swelling greatly reduced.

There is also evidence tending to show that the drainage provided by the defendant was not adequate, and if proper drainage had been afforded the infection would not have spread and the bones in the wrist and hand would not have become involved; that the use of a bichloride of mercury pack was not proper treatment, and that the hand should have been treated with hot salt solutions and hot packs to stimulate the blood supply and thereby assist in counteracting infection; that all loose and dead bone should have been removed as they tended to prevent healing and a recovery; that during the time of defendant's treatment the hand was swollen more than twice its size and the bones thereof were involved as a result of inadequate drainage.

Clearly, this evidence tends to show that defendant negligently failed to arrest the progress of the infection.

In this connection it is contended that certain testimony of plaintiff and Dr. Western should be disregarded as contrary to human experience. It is not contended the testimony contravenes any natural law. The weight to be given the evidence was for the jury, and the contention is overruled.

In addition to the facts summarized many inferences favorable to the plaintiff can be drawn from all the evidence.

The court ruled correctly in overruling the demurrer.

Defendant challenges the direction to the jury to allow plaintiff "the reasonable expense for medical Medical attention which plaintiff incurred by reason of his Attention. injuries, if any, and directly caused thereby." The contention rests on the absence of any proof of such expense.

There is evidence that plaintiff was in a hospital several weeks and was treated by several physicians. On this evidence an instruction to allow for medical attention would have been good as a general instruction on that element of damage. If the jury had been so instructed and the defendant desired the recovery on this element to be limited to nominal damages, it should have tendered an instruction to that effect. [State ex rel. United Rys. v. Reynolds, 257 Mo. 19, 165 S.W. 729.] But, the court gave no such instruction. It specifically directed the jury to allow plaintiff the reasonable expense for medical attention. This is not a general instruction, and, therefore, was not subject to limitation by an instruction given at the request of the defendant to limit the allowance on this element to nominal damages. If the court, at the request of the defendant, had given an instruction limiting the allowance on this element to nominal damages, it would have been inconsistent with the instruction given at the request of plaintiff to allow him the reasonable expense on this element.

The members of a jury may be presumed to know the value of the services of a nurse or common laborer. [Murray v. Railway, 101 Mo. 236, l.c. 240, 13 S.W. 817; State ex rel. United Rys. v. Reynolds, supra.] But it should not be presumed they know the value of the services of six physicians or surgeons who not only treated plaintiff, but operated on him several times.

Plaintiff suggests the evidence shows a loss in wages of $8,000, leaving only $2,000 for suffering and permanent injury. From this it is argued the amount of the verdict is absorbed by elements of damage well proven, and the defendant could not have been prejudiced by the instruction.

If permitted to speculate on the amount allowed by the jury for the different elements of damage, we could not do so in this case, for the plaintiff, on direct examination, testified he had not been able to work since he was injured, and on cross-examination testified he was working as a hod-carrier and earning full pay. On the record we are unable to determine the time lost as a result of the injury.

The instruction is erroneous and prejudicial.

Other questions presented will be eliminated on a re-trial.

For the error noted the judgment is reversed and the cause remanded. All concur.

McDONOUGH v. FREUND

EDWARD McDONOUGH v. DOCTOR NEWTON M. FREUND, Appellant.

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