Applegate v. Riggall, 5-1717

• Decision Date: 15 December 1958
• Docket Number: No. 5-1717,5-1717
• Citation: Applegate v. Riggall, 229 Ark. 773, 318 S.W.2d 596 (Ark. 1958)
• Parties: Stanley APPLEGATE, Appellant, v. Frank RIGGALL, Appellee.
• Court: Arkansas Supreme Court

Page 596

318 S.W.2d 596

229 Ark. 773

Stanley APPLEGATE, Appellant, v.Frank RIGGALL, Appellee.

No. 5-1717.

Supreme Court of Arkansas.

Dec. 15, 1958.

Shaw, Jones & Shaw, Ft. Smith, Crouch, Jones & Blair, Springdale, for appellant.

James R. Hale, Pearson & Pearson, Fayetteville, for appellee.

HARRIS, Chief Justice.

On November 20, 1957, Pauline O. Holt instituted suit in the Washington Circuit Court against appellant, Dr. Stanley Applegate.The complaint alleged that about March 10, 1956, Mrs. Holt became ill and sought the advice and services of Dr. Applegate; that she was informed by appellant that it was necessary that she undergo immediate surgery for removal of a tumor from her left ovary; that without her consent, the doctor removed her uterus, and performed upon her a total hysterectomy; that Applegate negligently cut, or otherwise destroyed, the normal function of her left ureter, creating a condition that prevented urine from escaping from plaintiff's left kidney, but causing said urine to collect therein and causing the kidney to become enlarged and infected; that she underwent excruciating pain and suffering from March 20, 1956, until May 2, 1956, on which date it became necessary that the kidney be removed.¹Further:

'VI

'That as the proximate result of the negligent acts or omissions by the defendantStanley Applegate, it was necessary that the plaintiff be confined in a hospital and under the care of physicians and surgeons for a total of one hundred and fifty days, during which period of time the plaintiff suffered severe and intense pain, suffering, and mental anguish, and for which hospital and medical care, and the drugs and medicines necessitated thereby, the plaintiff was required to, and did, expend large sums of money.

* * *

* * *

'VIII

'* * * the plaintiff states that it became and was necessary that her left kidney be removed as aforesaid, in order to prevent the flow and passage of her urine from said kidney into her vagina as hereinabove set out, and the leakage therefrom, and that on or about the 2nd day of May, 1956, said kidney was removed by further surgical operation, and the loss of said kidney caused the plaintiff great injury and damage, all of which injury and damage was the proximate result of the negligence acts and/or omissions on the part of the defendant as set out herein.

'IX

'That said acts and omissions, acting singly and together, caused and brought about and were the proximate cause of all of the aforesaid injuries and damages suffered by the plaintiff, all of which total the sum of one hundred thousand dollars ($100,000.00).'

The complaint prayed judgment against appellant in that amount.

Applegate answered, with a pleading termed, 'Answer and Third Party Complaint', denying the material allegations, and stating:

'* * * that if in fact the plaintiff sustained any damages as alleged in the complaint that the same are not the result of any negligence on the part of this defendant.'

He then alleged that Dr. Frank Riggall, a physician and surgeon at Prairie Grove,

'* * * carelessly and negligently represented to the plaintiff that her condition following surgery was such that it was necessary that her left kidney be removed, and acting upon said negligent representation, did, on or about May 2, 1956, remove the left kidney of the plaintiff; that the said action on the part of the cross-defendant was wholly unwarranted and that any damage, if any, suffered by the plaintiff was the proximate result thereof.That the negligence of the cross-defendant consisted of carelessly and negligently diagnosing the condition of the plaintiff as requiring the removal of the left kidney; and in carelessly and negligently advising the plaintiff to submit to said operation; and in carelessly and negligently performing the said operation without cause therefor; that the damage alleged in the complaint was the direct and proximate result of the negligence of the cross-defendant, for which this defendant and cross-complainant is not responsible. * * *'

Subsequently, Dr. Riggall demurred to the third party complaint, which demurrer was sustained by the court.From the...