Baldor v. Rogers

• Decision Date: 19 October 1954
• Citation: 55 A.L.R.2d 453,81 So.2d 658
• Parties: Dr. Julian F. BALDOR, and First Palma Ceia Hospital, Inc., a corporation, Appellant, v. J. T. ROGERS, Appellee.
• Court: Florida Supreme Court

Page 658

81 So.2d 658

55 A.L.R.2d 453

Dr. Julian F. BALDOR, and First Palma Ceia Hospital, Inc., a corporation, Appellant, v. J. T. ROGERS, Appellee.

Supreme Court of Florida, En Banc.

Oct. 19, 1954.

On Rehearing March 23, 1955.

Further Rehearing Denied June 3, 1955.

Benedict F. Fitzgerald, Jr., Washington, D. C., for appellant.

McEwen & Cason and James M. McEwen, Tampa, for appellee.

THOMAS, Acting Chief Justice.

The appellee was awarded a verdict of $65,000 in his action against the appellant, a physician, for malpractice in treatment of a malignancy.

It was charged in the complaint that the appellee engaged the appellant to treat a growth on his lip which had been present about two months and had been diagnosed as cancer. The appellant prescribed injections for the malady. In nine months the cancer had so spread that it involved the appellee's lip and chin but the appellant had not meanwhile recommended or used X-ray, radium or surgery to alleviate the condition. The appellant then discharged the appellee. It was alleged that the appellant should have known that the lesion could not be properly treated with 'shots' and should have changed the treatment when it was obvious that the condition worsened, and further that the appellant should not have 'abandoned' the appellee without arranging for further treatment. It was averred that in the 'vicinity' radium, X-ray and surgery were the approved methods of treating such malignancy. Lack of ordinary skill and diligence on the part of the physician were charged virtually to have ruined the patient.

The appellee, to resort to his own analysis of his complaint as given in his brief, sought 'damages in three phases': (1) for not applying 'the means * * * ordinarily and generally used by other physicians and surgeons of ordinary skill and learning * * * in Hillsborough County, Florida, and similar communities' in treating appellee's disease with glyoxylide; (2) for failure to change to radium, X-ray, or surgery when he realized the treatment was ineffective; and (3) for abandonment of his patient 'by sending him home * * * without arranging for any other medical attention.'

Numerous defenses were filed, i.e., denying malpractice, asserting the propriety of the treatment, charging contributory negligence by failing to follow directions, claiming correct treatment of the disease was not restricted to the three classical methods but that glyoxylide, Krebiozen, nitrogen mustard and other 'chemical or biological treatments' could be used with success, stating that the appellee had reported that both surgery and X-ray had already been used to no avail in treating another growth on appellee's face, denying that the appellant had abandoned the appellee, but asserting, on the contrary, that he could do no more for him unless the appellee would undergo an operation in which case other physicians should perform it, and that to this the appellee agreed.

It seems to us that the gist of the whole controversy is the propriety of the treatment administered, that is the Koch method v. surgery and irradiation.

Apparently there was no doubt about diagnosis, both physician and patient knowing when they first conferred that the growth was malignant. It is plain to us, too, that no importance can be given the suggestion that failure to advise the patient, when his condition did not improve, that he should resort to surgery or irradiation amounted to malpractice. It is clear from the appellee's own testimony that he declined surgical treatment when it was suggested by a physician whom he consulted before seeing the appellant. His attitude may best be learned by quoting his statements. When asked why he had a 'shot' administered by the appellant after surgery had been recommended by the other physician he replied: 'I did not want to be cut on.' When asked why he did not 'want to be cut on', he said 'For I heard so many people say it would scatter.'

Nor can we find logic in the argument that abandonment of appellee by appellant would shorten the latter's life. If the premise of improper treatment is sound, then the so-called abandonment would have been to the appellee's advantage had it occurred earlier.

To repeat, we believe the pivotal question is whether a physician who uses a method other than X-ray, radium and surgery in treating cancer, by that act alone, indulges in malpractice. The appellant concedes that these three methods 'have the blessing of the American Medical Association' but he contends that there is no sure cure for the ailment and no 'unanimity of opinion as to which of said procedures should be employed on (sic) a particular case.'

This Court will take judicial notice of the supreme effort being made by the members of the medical profession and by the citizenry as well to conquer the great human killer, cancer. The fight is unrelenting, organizations against the foe are active everywhere, and drives for funds to finance the conquest are constant. The reason, of course, for the intensive campaign is that the disease is out of hand because the remedy is so far unfound.

The record in this case abounds in references by physicians to such terms as chemotherapy, hormones, synthetic chemical compounds, nitrogen mustard, folic acid, aminopterin, urethane, Krebiozen, oxidation enzymes, escharotics, bacteriophage, benzoquinoline, antigen. One of the plaintiff's own witnesses said that '17% to 18%' of the money of the American Cancer Society allocated to research is spent in the field of chemotherpapy.

We do not propose to indicate what from the record in this case would appear to be the proper treatment in a given case. We are not physicians and we have no light on the subject except such as is shed by the testimony of physicians who are not in accord. But we do have the conviction that the heroic effort being made by members of the medical profession and other scientists only emphasizes that an enemy is so far being fought in the dark and that one man should not be condemned from the fact alone that he chooses a weapon that another may consider a reed.

From this record and the background on which it is superimposed, we find no reason to invoke the rule that the matter was one for the jury which the jury by its verdict settled. There could have been no clearcut issue whether the appellant committed malpractice when he used a certain method, for no infallible cure has been discovered. Upon the absence of certain cure there is agreement so it cannot be logically declared that the jury could determine the responsibility of the appellant because of a treatment that might be, from the witnesses they chose to believe, more acceptable. If there is no certain cure and if the physician did not indulge in quackery by representing he had one, both of which were well established by testimony, then the issues raised by the pleadings in this case and the facts built around them did not justify the jury in concluding that for the appellee's misfortune the appellant should pay.

As was said by the Supreme Court of Washington in Dahl v. Wagner, 87 Wash. 492, 151 P. 1079, 1080, 'the courts cannot...