Reed v. Laughlin

• Citation: 58 S.W.2d 440,332 Mo. 424
• Decision Date: 16 March 1933
• Docket Number: 30805
• Parties: Otto H. Reed v. George Laughlin, C. O. Sites and George Laughlin, Appellant
• Court: United States State Supreme Court of Missouri

58 S.W.2d 440

332 Mo. 424

Otto H. Reed v. George Laughlin, C. O. Sites and George Laughlin, Appellant

No. 30805

Supreme Court of Missouri

March 16, 1933

Appeal from Linn Circuit Court; Hon. Paul Von Osdol, Judge.

Affirmed.

Thomas P. Burns and Sampson & Dillon for appellant.

(1) In an action for damages against a licensed physician, the presumption is that the defendant has fully performed his duty to the plaintiff. Booth v. Andrus, 91 Neb. 810; McGuire v. Rix, 118 Neb. 434; Cayton v English, 23 F.2d 745; McDonnell v. Monteith, 231 N.W. 854; Wright v. Conway, 241 P. 369; Wiley v. Wigg, 254 P. 22. (2) In an action based on alleged malpractice there can be no recovery without competent expert medical testimony to show lack of requisite care and skill on the part of the defendant. McGraw v Kerr, 128 P. 870; Ewing v. Goode, 78 F. 442; Ball v. Skinner, 111 N.W. 1022; Miller v Toles, 150 N.W. 118; Zoterell v. Repp, 153 N.W. 692; Sheldon v. Wright, 67 A. 807; Wilkins v. Brock, 70 A. 572; Lyon v. Rhode Island Co., 94 A. 893; Dorris v. Warford, 100 S.W. 312; Pelky v. Palmer, 67 N.W. 561; Carpenter v. Blake, 10 Hun, 359; Whitesell v. Hill, 70 N.W. 570; Force v. Gregory, 27 A. 1116; Hathorn v. Richmond, 48 Vt. 557; Gates v. Tleescher, 30 N.W. 674; Spain v. Burch, 154 S.W. 172; Leighton v. Sargent, 27 N.H. 460; Becker v. Janinski, 15 N.Y.S. 675; Nickerson v. Gerrish, 96 A. 235; Tislur v. Niccalls, 2 Ill.App. 484. (3) Where negligence is alleged, the burden in every such case is on the plaintiff to establish such allegation and prove such neglect by competent expert testimony. Booth v. Andrus, 91 Neb. 810; Snearly v. McCarthy, 161 N.W. 110; Elkton Cons. Co. v. Sullivan, 41 Colo. 250; Pettigrew v. Lewis, 46 Kan. 78. (4) The defendant being an osteopath, the plaintiff must, therefore, establish his allegations of negligence by expert testimony of osteopathic physicians only. Tady v. Warta, 111 Neb. 521; McGraw v. Kerr, 23 Colo.App. 163; Bush v. Cress, 233 N.W. 319; Wilkins v. Brock, 70 A. 575; Ewing v. Goode, 78 F. 442; Adolay v. Miller, 111 N.E. 313; Force v. Gregory, 27 A. 1116; Patten v. Wiggin, 81 Am. Dec. 593; Martin v. Courtney, 77 N.W. 814; Pettigrew v. Lewis, 26 P. 452. (5) Whether or not an osteopathic physician has exercised the requisite degree of care and skill in the treatment of his patient is to be tested by the general rules and principles of the osteopathic school to which he belongs, and not by those of any other school. Booth v. Andrus, 91 Neb. 810; McGraw v. Kerr, 23 Colo. 163; Bush v. Cress, 233 N.W. 319; Force v. Gregory, 27 A. 1116; Cayton v. English, 23 F.2d 745; Van Sickle v. Doolittle, 155 N.W. 1007; State v. Smith, 138 P. 1107; Patten v. Wiggin, 81 Am. Dec. 593; Whipple v. Grandchamp, 158 N.E. 270; Janssen v. Mulder, 205 N.W. 159; Nelson v. Dahl, 219 N.W. 941; Grainger v. Still, 85 S.W. 1114; Dunn v. Beck, 260 P. 1047; Remley v. Plummer, 79 Pa.Super. 117; Floyd v. Michie, 11 S.W.2d 657; Wilkins v. Brock, 70 A. 572; Swanson v. Hood, 170 P. 135; Nelson v. Harrington, 40 N.W. 228; Martin v. Courtney, 77 N.W. 814; Atkinson v. American School of Osteopathy, 144 S.W. 821; Logan v. Wiltmer, 79 S.W. 658; Spead v. Tomlison, 59 A. 378; Bowman v. Wood, 1 Greene, 443; 21 R. C. L. sec. 28, p. 383. (6) The demurrer to the evidence was properly sustained, and the trial court erred in setting aside the judgment for defendants on the involuntary nonsuit. Smith v. Mo. Pac. Ry. Co., 113 Mo. 82; Kendrick v. Harris, 171 Mo.App. 212; Sissel v. Railroad, 214 Mo. 526; Milliken v. Commission Co., 202 Mo. 655; Bank v. Porter, 148 Mo. 182; Ryan v. Spalding, 40 Mo. 103; Frank v. Free, 190 Mo.App. 83; Smith v. Pullman Co., 138 Mo.App. 246; Griffith v. Continental Casualty Co., 253 S.W. 1049; O'Neill Implement Mfg. Co. v. Gordon, 269 S.W. 641; Holman v. Railway Co., 62 Mo. 564; State ex rel. v. Thayer, 5 Mo.App. 427; Sharp v. Mo. Pac. Ry. Co., 161 Mo. 237; Carroll v. Interstate Rapid Trans. Co., 107 Mo. 665; Tanner v. Ry. Co., 161 Mo. 512; Hamilton v. Railway Co., 300 S.W. 792; Crawford v. Stockyards Co., 215 Mo. 421; Schroer v. Brooks, 204 Mo.App. 585; Kennedy v. Met. St. Ry. Co., 128 Mo.App. 300; State to the use of Continental Bank v. Lidwell, 3 Mo.App. 591. (7) The court erred in setting aside the judgment for defendants on the involuntary nonsuit, and in reinstating count three for the reason that there was no competent testimony offered by plaintiff as to the proper care of plaintiff after the operation. Seewald v. Gentry, 286 S.W. 452; Saylor v. Brady (Kan.), 220 P. 1047; Delahunt v. Finton, 221 N.W. 168; Moline v. Christie, 180 Ill.App. 334; Febus v. Mather, 181 Ill.App. 277.

L. E. Atherton and P. M. Marr for respondent.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This is an action for damages for alleged malpractice. The defendant C. O. Sites was a practicing osteopathic physician at Harris, Missouri, and defendant George Laughlin an osteopathic physician and surgeon at Kirksville, Missouri. Plaintiff, Reed, resided, and was engaged in the furniture business, at New Town, Missouri. Plaintiff became ill and upon examination and diagnosis by defendants they advised plaintiff that an operation for appendicitis was immediately necessary and pursuant to such advice plaintiff entered a hospital conducted by defendant Laughlin and the operation was performed by Laughlin. The petition was in three counts. The substance of the first count is that defendants negligently and unskillfully examined plaintiff and wrongfully diagnosed an ailment from which plaintiff was suffering as appendicitis and "wrongfully and uselessly operated upon plaintiff for appendicitis" but "plaintiff did not have appendicitis and said operation was not necessary," and resulted in injury to plaintiff as therein alleged. The second count charged that defendants operated on plaintiff for appendicitis in such a negligent, unskillful and careless manner as to cause a stoppage or obstruction in plaintiff's bowels to occur, to his injury as therein set out. By the third count it is alleged: that defendants "negligently and carelessly failed to take proper care of plaintiff after said operation and that they negligently and carelessly paid no attention to him whatever that he was negligently and carelessly discharged from said hospital" at a time when "he was in no condition to leave the hospital, which defendants well knew;" that during the time he was "in the hospital and afterwards, while under the care of defendants, plaintiff's bowels did not move for a period of thirty-one days after the said operation . . . all of which defendants well knew. That plaintiff suffered great physical pain and mental anguish on account of the omissions and inattention and the negligence and carelessness of defendants in failing to give plaintiff proper care and attention while in such critical condition after said operation and while under the care and charge of defendants." (Italics ours.) Each count prays judgment for $ 15,000, actual damages and $ 15,000, punitive damages."

At the close of plaintiff's evidence plaintiff dismissed as to the second count and stood upon the first and third counts. Defendants then offered demurrers to the evidence as to both the first and third count. The trial court sustained the demurrers to the evidence as to both counts whereupon plaintiff took an involuntary nonsuit with leave to move to set same aside. In due time plaintiff filed a motion to set aside the involuntary nonsuit which was overruled as to the first count but sustained as to the third count. From this order of the court reinstating the third count and granting a new trial thereon, as to both defendants, the defendant Laughlin alone appeals. "The order of the trial court was tantamount to an order granting a new trial" and the defendant had "the statutory right to appeal therefrom." [Vordermark v. Hill-Behan Lumber Co. (Mo.), 12 S.W.2d 498.] The first and second counts of the petition have thus been eliminated and this appeal is concerned only with the third count.

The ground upon which appellant bases his contention here that the trial court erred in granting plaintiff a new trial upon the third count is that the demurrer to the evidence as to that count was properly sustained and that under the evidence a submissible case was not made out as to that count. That is the only real question involved, being the sum of appellant's argument. We have carefully read the evidence which is set out in full. It is apparent that much, if not a major portion of the testimony, was directed to the first and second counts. However, we undertake to separate and segregate the testimony directly relating to the third count and to state what same tends to show viewing it in the light most favorable to plaintiff as it is our duty to do in determining whether a prima facie case was made.

Plaintiff testified that he was seized with a severe and almost continuous pain "all up and down the right side of my abdomen" and that the pain having continued for "something like a day and a half" and becoming worse he went to see Dr. Sites at Harris at "about three-thirty in the afternoon" of August 28, 1928. Dr Sites made an examination, diagnosed plaintiff's ailment as appendicitis and advised an immediate operation. Dr. Sites arranged to take plaintiff to the hospital conducted by Dr. Laughlin at Kirksville and plaintiff left that same afternoon with and under the care of Dr. Sites to enter the hospital. Arriving there "about seven o'clock" in the evening plaintiff was put to bed by hospital attendants and some examination and certain tests were made by internes. About "ten-thirty" that night Dr. Laughlin personally made an examination, confirmed the diagnosis made by Dr. Sites, stated an operation...