King v. Solomon

81 N.E.2d 838, 323 Mass. 326, 8 A.L.R. 2d 1, 1948 Mass. LEXIS 594
CourtMassachusetts Supreme Judicial Court
DecidedOctober 29, 1948
StatusPublished
Cited by20 cases

This text of 81 N.E.2d 838 (King v. Solomon) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. Solomon, 81 N.E.2d 838, 323 Mass. 326, 8 A.L.R. 2d 1, 1948 Mass. LEXIS 594 (Mass. 1948).

Opinion

Qua, C.J.

This is an action against a physician for malpractice. It was originally brought by Eva King by writ dated February 21, 1942. Her husband, Leo A. King, was admitted on motion as a party plaintiff on October 7, 1946. He claims consequential damages for medical expenses in a separate count under G. L. (Tér. Ed.) c. 231, § 6A, inserted by St. 1939, c. 372, § 1. After a verdict for each plaintiff the judge entered verdicts for the defendant on leave reserved, and the plaintiffs except. The defendant excepts to the order admitting the husband as a party plaintiff.

On the plaintiffs’ exceptions the question is whether there was any evidence to warrant the verdicts for the plaintiffs. There was evidence that on December 25, 1939, the plaintiff Eva King was suffering from nausea but without pain; that the defendant, without any complaint of pain by her, without any physical examination, or questions as to medical history, gave her a hypodermic injection of morphine, which was repeated twice that day; that early [328]*328in 1940 the defendant gave her another injection in similar circumstances; that in 1941 the defendant gave her occasional injections until by July she was receiving about two injections a week; that by the end of August he was giving her an injection every day, in September twice a day, and in October three times or more a day until the plaintiff Leo A. King ordered the defendant from the house and threatened to “clean him up”; that thereafter the plaintiff Eva King became “jumpy and nervous”; and that two days later, “after telephoning about every doctor in Adams for morphine,” she experienced a complete blackout and was taken to a hospital suffering from morphine addiction described as “one quarter the way along to confirmed addiction.” There was evidence from which the jury could find that all these injections were of morphine. This plaintiff testified in effect that she had never stated she had pain until after the defendant had ceased giving her the injections. In 1944 she had her gall bladder removed. She testified that a stone was .found, and that after the operation the nausea she had had since 1939 ceased. There was medical evidence that gall stones “don’t come over night”; that the nausea was caused by the gall bladder trouble; that it was possible to have gall bladder trouble with nausea and without pain; and that it was not proper medical practice to administer morphine to a patient who complained of nausea but not of pain, or over a period of time where there was no pain involved, or to continue giving morphine in the absence of a diagnosis of a condition that could not be cured.

On the foregoing evidence the jury could find that the defendant in administering morphine to the plaintiff Eva King over a long period of time with constantly increasing frequency until she became to a considerable extent addicted to the drug failed to observe the standard of skill and care required of him as a physician. See Small v. Howard, 128 Mass. 131; Semerjian v. Stetson, 284 Mass. 510, 512-513; Gabrunas v. Miniter, 289 Mass. 20; Vigneault v. Dr. Hewson Dental Co. 300 Mass. 223. There was ample evidence, which need not be stated in detail, that her condi[329]*329tian when she was taken to the hospital was próximately caused by morphine administered by the defendant notwithstanding evidence that another physician had given her codeine “from 1939 on and during the period of time Dr. Solomon was treating her,” and that she had taken quantities of phenobarbital for a period not shown to have coincided with the period during which the defendant was administering frequent injections of morphine.

It could not be ruled as matter of law that the plaintiff Eva King was guilty of contributory negligence, or that she assumed the risk of addiction. It is true that she knew she was getting the injections, and that eventually she sought them, and she testified that by about the last of July she was “beginning to get a little sneaky — starting to he” and did not always tell the defendant the truth about her condition. She also testified that she did not know what the defendant was giving her, although in July she had a “suspicion,” and she knew it was something that was relieving her and making her feel “pretty high.” From this, together with other evidence that need not be stated, the jury could have found that she knew she was getting morphine, but they were not obliged so to find. Much less were they obliged to find that she knew at what point addiction would begin, or that at any time before addiction became a fact she had ceased to rely upon the superior knowledge of the defendant as to the amount of the drug that could safely be taken over a given period of time. There was medical evidence that a person could become addicted “without knowing it.”

The defendant is not aided by the provision in G. L. (Ter. Ed.) c. 94, § 200, that “A physician may personally administer any narcotic drug at such time and under such circumstances as he, in good faith and in the legitimate practice of medicine, believes to be necessary for the alleviation of pain and suffering or for the treatment or alleviation of disease.” This section was intended merely to make it plain that physicians personally administering narcotics in good faith and in legitimate practice should be exempt from a series of penal provisions relative to the sale and distribution of [330]*330narcotic drugs. It was not intended to relieve them from civil liability under principles of law applicable generally not only to physicians in all other matters relating to the practice of their profession but also to all those who hold themselves out as possessing peculiar skill and competence in other professions and trades. This is made perfectly plain by referring to the wording of St. 1917, c. 275, § 3, the immediate predecessor of G. L. (Ter. Ed.) c. 94, § 200. See St. 1914, c. 694, § 3; St. 1915, c. 187, § 3; Commonwealth v. Noble, 230 Mass. 83, 87. And the plaintiff Eva King did not herself violate G. L. (Ter. Ed.) c. 94, § 203, inasmuch as she made no false representation "for the purpose of procuring a prescription for, or the delivery of, a narcotic drug.” The word "delivery” in this penal statute, especially in view of the provisions of § 200 quoted above, cannot reasonably be stretched to include a hypodermic injection personally administered by a physician. We do not reach the question whether if she had violated the statute she would be prevented from recovering.

This decision rests upon evidence of improper and unprofessional conduct on the part of the defendant leading to addiction in the plaintiff Eva King. Nothing contained herein need cause anxiety to an honest physician who administers narcotics to a patient in accordance with the prevailing standards of medical practice.

On the defendant’s exception the question is whether the plaintiff Leo A. King was properly admitted as a party plaintiff under G. L. (Ter. Ed.) c. 231, § 6A, inserted by St. 1939, c. 372, § 1, especially since the statute of limitations, G. L. (Ter. Ed.) c. 260, § 4, as amended, had already barred any separate action by him at the time when he was admitted as a party in his wife’s action.

The 1939 act provides without qualification that "At any time before or during the trial of an action by a married woman or minor for damages for personal injuries,” the husband or parent who has incurred medical expenses on account of such injuries may upon motion be admitted as a party plaintiff.

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Bluebook (online)
81 N.E.2d 838, 323 Mass. 326, 8 A.L.R. 2d 1, 1948 Mass. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-solomon-mass-1948.