Carraway v. Graham

118 So. 807, 218 Ala. 453, 1928 Ala. LEXIS 327

• Court: Supreme Court of Alabama
• Decided: November 1, 1928
• Docket: 6 Div. 12.
• Status: Published

Opinions

Action by appellee against appellant for malpractice. The allegation of the complaint is that "defendant was a physician and surgeon in Jefferson county, Ala., and as such undertook for hire and reward * * * to treat plaintiff for an injury to his hip he was then suffering with, and plaintiff avers that defendant so negligently conducted himself in or about his treatment of the plaintiff under said undertaking as that," etc. Looking to the evidence in the record it may safely be said that plaintiff's illness had its origin in a blow or kick received by him while engaged in a game of football — plaintiff was a schoolboy — but, indubitably, plaintiff was not taken to defendant to be treated in any exclusive sense for an injury to his hip, nor did defendant undertake specifically to treat plaintiff for an injury to his hip, as the complaint may be construed to intend; but the fact is that plaintiff, after having been treated by the medical faculty at Goodwater, where he lived, by, to wit, Drs. Argo and Wilson, was carried on their advice to defendant's hospital in Birmingham in order that his case might be diagnosed and proper surgical treatment administered, and this fact should be kept in mind when considering the allegation of the complaint, which fails accurately to describe plaintiff's grievance, if any.

The briefs indicate that the action of the trial court on defendant's motion for a new trial is considered by the parties as presenting the most serious question raised on the record. We have accordingly treated it in the first place.

On the trial in the court below the person of plaintiff, appellee, was exhibited to the jury, and, on the submission of the cause for review in this court, the offer to exhibit the plaintiff's person and the several scars left by his treatment was renewed; but the court declined to make the proposed inspection; and now appellee contends that the ruling on the motion for a new trial should not be considered on appeal, for the reason that the court has not before it the whole case as it appeared in the trial court. The contention cannot be allowed. The court has before it all the evidence, in the course of which plaintiff's wounds were time and again carefully described, and it may be assumed that they left commensurate scars. And the fact is that these scars became of importance only in the admeasurement of damages, in the event it should be found that they had been inflicted in the course of negligent treatment at the hands of defendant. It is conceivable, of course, that in some such case there may be scars of such location or extent as to disclose to the lay observer even the fact of malpractice; but we are entirely clear to the conclusion that this cause does not furnish an example of that sort of wrong, and that the proposed exhibition, if permissible in any case on appeal, which may be seriously doubted (Elliott's Appellate Procedure, § 620), would have contributed nothing to an understanding of the question involved by this assignment of error.

There is no requirement of law that defendant should have been infallible in diagnosis or treatment of plaintiff's trouble. A physician or surgeon undertakes to exercise at least ordinary diligence and skill in the treatment of his patient — such care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice, ordinarily exercise in like cases. Moore v. Smith, 215 Ala. 595, 111 So. 918, and cases cited. He cannot be held, in the absence of express agreement, to have warranted a cure, and, if he exercises reasonable care and skill, is not liable for an error of judgment in diagnosis or treatment, where the proper course is subject to reasonable doubt. Barfield v. Infirmary, 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097. A showing that an unfortunate result has followed does not shift the burden of proof. The complaining patient must still show negligence in diagnosis or treatment. Moore v. Smith, supra. Keeping in mind the foregoing rules of liability — rules well established in this and other jurisdictions — we proceed to a statement of our consideration of the case presented by the record.

Plaintiff had been hurt in a game of football, had received a kick on or in the neighborhood of the left hip, but continued at school for two days, though suffering some pain — this, it seems plain enough, because his father had forbidden him to play the game. The physicians at Goodwater treated him for a week, and then, being both of opinion that the abdomen would need to be opened, took him to defendant's hospital at Birmingham. At that time he was suffering intensely. His pulse and temperature were dangerously high. He was critically ill. Defendant had plaintiff's blood and urine tested. The latter gave no indication; but blood showed a high count of leucocytes, indicating a general pus infection. Defendant determined to operate at once. Plaintiff finds fault on the ground that no X-ray picture was taken in advance. Defendant thought there was not time for X-rays, and, however that might be, that at that stage the X-ray would show nothing helpful. This was the opinion also of the other surgeons who testified in the cause. Next day X-ray pictures were taken, but they disclosed nothing more than the clips with which plaintiff's wounds had been closed. Defendant, a physician and surgeon of 25 years' experience, took plaintiff's history; examined him "from head to foot" (testimony of defendant, plaintiff, and plaintiff's father); and had the above-mentioned tests made before proceeding to operate. He found no exterior signs of hurt. He made an incision on the left side just above the pubic symphysis, i. e., the lower pubic bones at the anterior point of the abdomen — this for the reason that there he found some tension and the greatest pain. His best judgment was that plaintiff was suffering from an abscess, caused by a ruptured appendix, which had formed at that point. Plaintiff thinks this showed professional incompetence. We are unable to concur in that judgment. The medical and surgical experts, of whom a number were examined, have not so deposed. The medical work, shown to be standard and properly admitted in evidence (Barfield v. Infirmary, supra), speaks of such abscesses on the left side. Defendant found no abscess at the place of incision. He then closed the wound on the left side and proceeded, through a median opening below the navel, to explore the abdominal cavity. He found the appendix and the other tangible organs to be normal. But there was an exudation of a straw-colored fluid from the incisions made, and this indicated inflammation; and he found a hard thickening or swelling of the peritoneal wall of the abdominal cavity just inside of the upper point of the hip bone, towards the rear, about half the size of his hand, which had not yet come to a head, and, to drain that area through the back rather than through the abdominal cavity, he made a third incision for the introduction of another drain under the left kidney. Plaintiff complains of this third incision, and speaks of it as if it had been made into the kidney, but the record does not afford any basis for that notion.

And here we note the fact that several of appellant's assignments of error are predicated on the refusal of the trial court to give specially requested charges to the effect that there was no evidence of certain alleged facts. For example, the court refused to defendant a charge requested in this form:

"The court charges the jury that there is no evidence in this case that defendant cut into either of plaintiff's kidneys."

There was no such evidence, and this charge might have contributed something to the jury's understanding of the issues to be decided. In Alabama Consolidated Co. v. Heald, 171 Ala. 273,55 So. 184, the court held this language:

"While trial courts may, and in some cases should, give such instructions, it has been repeatedly held by this court that the lower court will not be reversed for refusing such requested charges."

Some of the cases are the following: Jefferson v. State,110 Ala. 89, 20 So. 434; Montgomery Street Ry. v. Rice, 142 Ala. 674,38 So. 857; Montgomery Street Ry. v. Smith, 146 Ala. 316,39 So. 757; Tutwiler v. Burns, 160 Ala. 386, 49 So. 455; New Connellsville Co. v. Kilgore, 162 Ala. 642, 50 So. 205; A. G. S. v. Yount, 165 Ala. 537, 51 So. 737; Birmingham v. Poole,169 Ala. 177, 52 So. 937. We intend no departure from the established rule of these and other cases; we intend only to suggest that in some cases charges of this sort may serve a useful purpose.

From these operations — no doubt from the release of the straw-colored fluid, the product of inflammation — plaintiff had some relief, some improvement in pulse and temperature. But five or six days later an obstruction of the bowel developed, and imperatively demanded immediate relief. Defendant, after communicating with plaintiff's father at Goodwater, and getting his approval, made another median incision, avoiding the first median incision, because it showed signs of infection, found the obstruction, and corrected it. At one point a matting of the small intestines was found, and this defendant, with the assistance of Dr. Talley, corrected. Appellee argues for one thing that rough handling of the intestines during the exploratory operation caused this trouble. The evidence is that such condition may follow handling or may result as a product of inflammatory conditions, and, in any event, there is always a chance of such result; but the risk must be taken or the patient left to die. To charge this result to malpractice on the evidence in this record, if it was so charged, was to mulct defendant on a surmise. That, we take it, cannot be permitted. At the end of another week or two — the exact time is in dispute — a swelling appeared above and inside of the left hip bone, which after some days was opened, and three or four ounces of pus drained out, and with it some small slivers of bone, which, evidently, came from the hip bone. Then plaintiff began to recover, and at the time of the trial had regained his previous weight, and had returned to his studies.

We have made this statement of plaintiff's case and defendant's treatment of it from the information contained in the record, not in utmost detail, but sufficiently, in our judgment to disclose the merits of the contention between the parties as they appear to us. We cannot assume or concede that they might in reason have appeared differently to the jury.

Dr. John W. Wilson and the senior Dr. Argo, both of Goodwater, and Drs. Cunningham Wilson, Hogan, Talley, Mason, and the junior Dr. Argo, the latter of whom was connected with defendant's hospital, and assisted at the operations of which plaintiff complains, and defendant himself, all experts in surgery except Dr. John W. Wilson and the senior Dr. Argo, who practiced medicine, but not major surgery, testified in the cause, all for the defendant, except Dr. John W. Wilson. None of them — and this includes Dr. John W. Wilson — testified to any facts or opinions which would authorize the inference by the lay mind that the defendant was incompetent to practice his profession or had negligently diagnosed or treated plaintiff's case. This Dr. Wilson did testify that one of the X-ray pictures in evidence possibly showed a thickening and diseased condition of the left hip bone. A hearsay statement by plaintiff's father was to the same effect; that is, he quoted one of the surgeons to that effect. But this picture was taken at Sylacauga after plaintiff had returned home, and weeks after the operations of which plaintiff complains. It can hardly be supposed that this information, even though it had been more definite and trustworthy than it was in fact, could have afforded any assistance in diagnosis eight or nine days after plaintiff got hurt in the football game. That plaintiff suffered greatly, and that his wounds left scars, or that plaintiff will always be required to wear a bandage — though that does not appear except as a possible result in the opinion of some of the surgeon witnesses and as an inference from the fact that he wore a bandage at the time of the trial — cannot be charged against defendant, unless he negligently misjudged or treated plaintiff's case. One brief speaks of hernia; but there was no evidence that plaintiff suffered from hernia; there was only the opinion that hernia sometimes results from surgical operations such as plaintiff had undergone. Our decided opinion is that, as in Robinson v. Crotwell, 175 Ala. 197,210, 57 So. 23, the jury were moved more by plaintiff's suffering and his scars — which were exhibited more than once to the jury — than by a consideration of the law and facts upon which the result should have been made to turn.

In other words, it is clear enough, the jury found defendant to be answerable in damages on their observation of his condition at the trial rather than upon a finding of negligence in the diagnosis or treatment of a case which when it came under his observation involved both extreme difficulty in diagnosis and great danger to the patient. No medical man has imputed negligence to defendant. The burden of proof was on the plaintiff. The doctrine of res ipsa did not apply. Moore v. Smith, supra. Our judgment is that the jury should have been controlled in their finding by the expert testimony rather than the testimony of plaintiff — who, of course knew nothing of the real import of his condition, and certainly nothing of what was done while he slept from an anaesthetic — or that of his father, who stood at the door of the operating room, where there were two surgeons and two attendant nurses, and from that viewpoint undertook to differ from the operating surgeon and his expert assistant as to what was done or the order in which it was done.

The court here should proceed with great caution; but it should leave no evident mistake unrighted. "This court has not renounced its duty nor neglected its power" — certainly, it ought not to do so — "to revise the verdicts of juries and the conclusions of trial judges on questions of fact, where, in our opinion, after making all proper allowances and indulging all reasonable intendments in favor of the court below, we reach a clear conclusion that the finding and judgment are wrong." Twinn Tree Lumber Co. v. Day, 181 Ala. 565, 569, 61 So. 914,915.

It cannot be said that there was no contradiction in the evidence and its tendencies; the question for decision was one for the jury, in the first place, at least. Nevertheless, ultimately and within reasonable limits it is the right and duty of the court to revise the finding of the jury. The case at bar was in a peculiar sense one to be decided on the expert testimony. The great weight of that testimony was with the defendant, and our judgment is that the motion for new trial should have been granted.

There is no necessity for a further consideration of the errors assigned.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.

On Rehearing.