Butler v. Travelers Insurance Co.

264 So. 2d 756, 1972 La. App. LEXIS 6379
CourtLouisiana Court of Appeal
DecidedJune 26, 1972
Docket8895
StatusPublished

This text of 264 So. 2d 756 (Butler v. Travelers Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. Travelers Insurance Co., 264 So. 2d 756, 1972 La. App. LEXIS 6379 (La. Ct. App. 1972).

Opinion

264 So.2d 756 (1972)

Leo BUTLER et al.
v.
TRAVELERS INSURANCE CO. et al.

No. 8895.

Court of Appeal of Louisiana, First Circuit.

June 26, 1972.
Rehearing Denied July 28, 1972.

*757 Robert Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellee Dr. Wm. Smith and Travelers.

Bryant W. Conway, Baker, for appellant.

Donald S. Zuber, Seale, Smith & Phelps, Baton Rouge, for defendant-appellee Dr. William C. Dunbar and Insurer, American Ins. Co.

Before LOTTINGER, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

This suit, before us for the third time, seeks damages for injuries sustained by Lilly Mae Wade Butler which were allegedly caused by the medical malpractice of Drs. William E. Smith and William C. Dunbar. She was joined as a plaintiff herein by her husband, Leo Butler, at the time of the original filing of this action, although his whereabouts are now unknown; also named as defendants are The Travelers Insurance Company and the American Insurance Company, the liability insurers of Drs. Smith and Dunbar, respectively. This appeal is taken by the plaintiffs from an adverse judgment rendered subsequent to trial on the merits.

The petition initiating this protracted litigation was filed on April 9, 1963, and states essentially that Lilly Butler contracted tetanus as a result of improper treatment by the named physicians. The allegations claimed that on May 7, 1962, the petitioner suffered a cut on her knee for which she was treated at Our Lady of The Lake Hospital in Baton Rouge by Drs. Smith and Dunbar. During that treatment, a tetanus vaccination history was obtained from the patient but that improper treatment was given in view of the history which she supplied them, and that by May 17, 1962, she had contracted a serious and extensive case of tetanus for which she was hospitalized some fifty-seven days, was subjected to additional surgery, and during which she remained in a coma for ten days, for all of which she is entitled to recover from the defendants.

The petition was amended on March 30, 1965, to include as defendants Parke, Davis & Co. and Wythe Laboratories, Division of American Home Products Corporation, manufacturers of the tetanus toxoid and penicillin preparations which were given to Mrs. Butler by Dr. Dunbar, that amending petition alleging breach of warranty on the part of these manufacturers. Motions for summary judgment were sustained as to Parke, Davis and Wythe in the district court and, on appeal, we affirmed those decisions. See Butler v. Travelers Insurance Company, 202 So.2d 354 (La.App., 1st Cir. 1967).

*758 On May 21, 1969, the plaintiffs again amended their petition to allege certain other acts and omissions by these physicians and to amend their original prayer for damages to a greater amount. Thereafter, motions for summary judgment were filed by the defendants presently before us. These motions were sustained by the trial judge, but were reversed by this court and trial on the merits ordered. See Butler v. Travelers Insurance Co., 233 So.2d 271 (La.App., 1st Cir. 1970). As previously indicated, that trial resulted in a judgment for the defendants and the dismissal of plaintiffs suit. We affirm that judgment.

In written reasons for judgment, the district judge correctly stated the jurisprudential rules which are applicable to the case at bar, as stated by the Supreme Court in Meyer v. St. Paul—Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953) as follows:

"A physician, surgeon or dentist, according to the jurisprudence of this court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible. As a general rule, it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case." (Extensive citations omitted.)

This court has consistently adhered to that doctrine. See Sims v. Silvey, 246 So.2d 394 (La.App., 1st Cir. 1971) and authorities cited therein.

Nor does the undertaking physician guarantee a cure. As was pointed out by the Supreme Court in Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963):

"We think the general rule universally obtaining on the subject matter is that: `When a physician undertakes the treatment, of a case he does not guarantee a cure, nor is any promise to effect a cure or even a partial healing to be implied, nor does the law raise from the fact of employment an implied undertaking to cure, but only an undertaking to use ordinary skill and care. For this reason a physician cannot be held up to a standard of civil responsibility similar to that of engineers, mechanics, and shipbuilders. Of course a physician might contract specifically to cure and he would be liable on his contract for failure, but, in the absence of such a special and peculiar contract, the fact that treatment has resulted unfavorably does not even raise a presumption of want of proper care, skill, or diligence. * * *'" 21 R.C.L. Sec. 36 p. 391. Also, see 70 C.J. S. Physicians and Surgeons § 57, pp. 981, 982:
"A dentist, like a physician or surgeon, is not an insurer or guarantor of results, in the absence of express agreement." 41 Am.Jur., Physicians and Surgeons, Sec. 104, p. 219.

An examination of this case, in view of these well established principles of law, compels the conclusion that the plaintiffs' case is totally without merit. That approximately 11:30 o'clock p. m. on the evening of May 7, 1962, Lilly Mae Wade Butler, a twenty-seven year old colored female, was admitted to the emergency room of Our Lady of The Lake Hospital in Baton Rouge, Louisiana, suffering from what was generally described to be a minor cut on her nose and a rather deep cut on her right knee, both of which were sustained as a result of a domestic argument which ensued between her husband and herself. She was initially examined by Dr. William C. Dunbar, a general practitioner at that time, now a specialist in radiology, who described the knee would as a laceration of about two and one-half to three inches in length which was cleanly incised as if it had been done by a sharp object, and which was deep enough to extend into the *759 knee joint. He obtained from her, as best he could, a history of her "lockjaw" immunization and she replied that, to the best of her memory, she believed that she had had one shot when she was about six or seven years old. Dr. Dunbar, thereafter, ordered injections of penicillin and tetanus toxoid and, at that time, called an orthopedic specialist, Dr. William E. Smith, to examine the patient, due to the deep nature of the knee wound. Upon Dr. Smith's arrival at approximately midnight, they again examined the patient and at that time, according to Dr. Smith's testimony, he accepted the patient as his own and became responsible for her further treatment. Dr. Dunbar, subsequent to assisting with the surgery on that evening, did not see the patient again.

Upon arriving from his home on that evening, Dr. Smith confirmed that the injury extended into the knee joint and then ordered that the patient be prepared for surgery, which she underwent some two to three hours later.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Goodwin v. Hertzberg
201 F.2d 204 (D.C. Circuit, 1952)
Crovella v. Cochrane
102 So. 2d 307 (District Court of Appeal of Florida, 1958)
Thompson v. Brent
245 So. 2d 751 (Louisiana Court of Appeal, 1971)
Butler v. Travelers Insurance Co.
202 So. 2d 354 (Louisiana Court of Appeal, 1967)
Phelps v. Donaldson
150 So. 2d 35 (Supreme Court of Louisiana, 1963)
Atkins v. Humes
110 So. 2d 663 (Supreme Court of Florida, 1959)
Butler v. Travelers Insurance Co.
233 So. 2d 271 (Louisiana Court of Appeal, 1970)
Meyer v. St. Paul-Mercury Indemnity Co.
73 So. 2d 781 (Supreme Court of Louisiana, 1954)
Lanier v. Trammell
180 S.W.2d 818 (Supreme Court of Arkansas, 1944)
Walker Hospital v. Pulley
127 N.E. 559 (Indiana Court of Appeals, 1920)
Ross v. Griswold
128 N.E. 933 (Indiana Court of Appeals, 1920)
Evans v. Roberts
172 Iowa 653 (Supreme Court of Iowa, 1915)
Sims v. Silvey
246 So. 2d 394 (Louisiana Court of Appeal, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
264 So. 2d 756, 1972 La. App. LEXIS 6379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-travelers-insurance-co-lactapp-1972.