Barfield v. South Highland Infirmary

• Decision Date: 14 January 1915
• Docket Number: 867
• Citation: 191 Ala. 553,68 So. 30
• Parties: BARFIELD v. SOUTH HIGHLAND INFIRMARY et al.
• Court: Alabama Supreme Court

68 So. 30

191 Ala. 553

BARFIELD v. SOUTH HIGHLAND INFIRMARY et al.

No. 867

Supreme Court of Alabama

January 14, 1915

Rehearing Denied Feb. 4, 1915

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Suit by Josephine Barfield against the South Highlands Infirmary and another, for damages for alleged malpractice. Judgment for defendants, and plaintiff appeals. Affirmed.

The facts appear in the opinion of the court.

The fifth assignment of error is as follows:

"The court erred in overruling plaintiff's objection to the question, 'Is it not a fact that this sort of human disaster is preventable, in your opinion and judgment as a physician?' "

Assignment 7 is to overruling plaintiff's objections to the following questions:

"Is it true that in case of a fracture of the femur, if a vein has been compressed by a displaced fragment of the bone, causing thrombosis, the resulting gangrene of the wound occurs?"

"Doctor, taking into consideration your knowledge of the history of this case, the kind of injury that was caused fracture, its proximity to the blood vessel, or the probability of it impinging or resting upon a blood vessel resting upon the fracture, and taking into consideration all that you know about the case of your own knowledge, as testified to by you, and the fact that several weeks afterward, while she was still in the infirmary under the treatment of Dr. Prince, mortification began to set in in the leg; suppose the foot became cold; no pulsation in the vessel; green spots began to appear on different parts of the limbs--what, in your opinion, was the cause of that condition?"

Assignment 8 refers to the answer to the question:

"I should say she lost her limb from a gangrene or death of the limb; that would be my answer."

Assignments of error 17 to 29, inclusive, have reference, first, to declarations made by plaintiff to Dr. Jordan about the amputation, and what he said, and what she said relative thereto, and whether or not witness knew that Dr. Prince sent Dr. Jordan in to tell her about her condition.

Assignments 43 and 44 are the same, as follows:

Is there any way known to the medical profession by which a blood clot in cases of this sort can be prevented?

Assignment 75 sets forth:

"Miss Gossett came down and said, 'Miss Josephine says she is willing to have her leg cut off.' (Objection by plaintiff.)"

Assignment 47:

"The court erred in overruling plaintiff's objection to the question, 'Did she know that her leg had been amputated?' "

The charge made the basis of assignment 101 is as follows:

"If you find from the evidence in this case that plaintiff was in imminent danger of losing her life by reason of an infected or dislocated leg, and was advised by Dr Prince to have her leg amputated to save her life, I charge you that it was her right and privilege to refuse to give her consent to the amputation, and if she did refuse to give her consent, and Dr. Prince cut it off without her consent, it was wrongful."

The court gave the following charges for defendant:

"[1] If a patient voluntarily submits to an operation her consent thereto will be presumed.

"[2] Unless it is so provided by an express contract, a physician or surgeon does not warrant that he will effect a cure, or that he will restore the patient to the same condition as before the necessity for treatment arose, or that the result of the treatment will be successful.

"[3] A physician or surgeon possessing the requisite qualifications and applying his skill and judgment with ordinary care and diligence to the diagnosis and treatment of the patient is not liable for an honest mistake or error of judgment in making a diagnosis or prescibing a mode of treatment, where there is ground for reasonable doubt as to the practice to be pursued."

Allen & Bell, of Birmingham, for appellant.

Cabaniss & Bowie, of Birmingham, for appellees.

SAYRE J.

Plaintiff (appellant) brought her action against defendants, a surgeon and an incorporated infirmary where the surgeon operated, alleging: (1) That defendants wrongfully, intentionally, and without her consent amputated one of her legs; and (2) that they so negligently and unskillfully treated one of her legs, which had been accidentally broken and injured, as to make its amputation necessary. From a verdict and judgment for defendants, plaintiff has appealed.

On the undisputed evidence the defendant corporation was entitled to the general charge which it requested and received. The medical and surgical treatment and operation were prescribed and performed by the defendant Prince under an independent employment by plaintiff, and Prince, though he was a shareholder and officer of defendant corporation, in treating and operating upon plaintiff acted not at all as the agent of the said corporation nor within the line and scope of his authority as an officer. Beyond question or doubt any negligence, unskillfulness, or other wrong, if any there was, was his wrong, and for it he alone was responsible. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23. Such being the case, other assignments of error bearing alone upon the alleged liability of defendant corporation need not be considered.

On defendant's motion the deposition of Frances J. Barfield was suppressed, and this ruling is assigned for error. We do not feel sure that we are in a position to pass upon this assignment intelligently. We have before us the deposition in narrative form, the grounds of the motion, one of which was that notice of the time and place of taking the deposition was not given to defendants, the court's ruling, and an exception reserved in due form. If any evidence was taken on the motion, we have it not before us. We are left to infer the ground upon which the court acted, though it is proper to assume that the court acted upon some one of the grounds assigned for the motion. The statute on this subject has by amendments (Acts Sp.Sess.1909, p. 168; Acts 1911, p. 487) been reduced to a state of obscurity and confusion in some respects. Our best judgment is that the last proviso to section 4032 of the Code, as amended by the act of 1911, intends that in all cases where depositions are taken on commissions from the law courts, that is, in all cases provided for by section 4030, the party against whom it is proposed to take such testimony shall, within the time allowed for the filing of cross-interrogatories, have the right to demand reasonable notice of the time and place of taking the testimony and to attend the examination when and where had, and cross-examine the witness or witnesses orally. For aught appearing the deposition was suppressed for lack of compliance with the requirement of this statute as to notice. Error must be affirmatively shown. Appellant has failed to show error in the ruling under examination.

There was no error in refusing to allow plaintiff, on the examination of her witness Dr. Whelan, to have an answer to the question: "Did you know how much Dr. Prince charged for what he did for this girl?"--referring to plaintiff. Prima facie this question was inadmissible. The amount of the charge was not in issue. Defendant was morally and legally bound to exercise the same degree of care, diligence, and skill whether his charge was large or small. The fact that the charge was unreasonable--assuming that plaintiff may have been able to prove it so--afforded no inference of wrong or negligence. It may be stated further, though we are entirely satisfied with the ground of the ruling already announced, that later in the progress of the trial plaintiff had a statement of the charge that appears to have been accepted without challenge.

Some courts hold differently, but this court has long entertained the opinion that relevant extracts from medical treatises, recognized and approved by the medical profession as standard, may be read to the jury in evidence. Stoudenmeier v. Williamson, 29 Ala. 558; Bales v. State, 63 Ala. 30. Appellant's real complaint at this point seems to be that defendant was allowed, on cross-examination, to ask Dr. Whelan, an expert medical witness, whether it was true, as stated in Scudder's Treatment of Fractures, a work shown to be of high authority, that:

"It is not very uncommon, even in closed fractures of the femur, to find gangrene of the leg developing because of laceration or pressure upon the great vessels of the limb. Early amputation of the thigh just above the fracture will be necessary in these cases. It should be done early in order to save life."

This was a statement of surgical theory and practice, made in the abstract, but strictly relevant to the concrete case sought to be shown by plaintiff. The gist of the question was whether the witness' expert opinion concurred with that of the author. Defendant was entitled to the answer. Stoudenmeier v. Williamson, supra. This ruling in principle disposes of several of the assignments of error.

It seems scarcely necessary to linger over appellant's fifth assignment of error. If the question was put in exactly the form shown in the bill of exceptions, it was leading. But it led away from, not to, the answer desired, and, anyhow, it was within the court's discretion ordinarily to allow a leading question. The witness was competent, the expert opinion called for was relevant, and there was no error.

Assignments 7 and 8 cannot be sustained. Some of the facts hypothesized in these questions, seeking to elicit an expert opinion, had not been proved. It would have been better practice to defer the questions until evidence of all the hypothesized facts had been offered, as it was at a later stage of the case; but errors of this sort cannot be allowed to work a reversal where, as here, they have been substantially cured.

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