Barrett's Admr. v. Brand

• Decision Date: 12 March 1918
• Citation: Barrett's Admr. v. Brand, 179 Ky. 740, 201 S.W. 331 (Ky. Ct. App. 1918)
• Parties: Barrett's Administrator v. Brand.
• Court: Kentucky Court of Appeals

179 Ky. 740

Barrett's Administrator v.Brand.

Court of Appeals of Kentucky.

Decided March 12, 1918.

Appeal from Mason Circuit Court.

ALLEN D. COLE, H. W. COLE and J. M. COLLINS for appellant.

WORTHINGTON, COCHRAN & BROWNING and SLATTERY & REES for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming.

This is a malpractice suit brought by appellant as administrator of his wife, Florence Barrett, against the appellee, a physician and surgeon, to recover damages because of the death of plaintiff's decedent which he alleges was the proximate result of negligence, unskillfulness and carelessness on the part of the defendant while performing an operation upon decedent for chronic ovaritis.

The negligence charged was denied by answer, and upon trial the jury returned a verdict in favor of defendant from which plaintiff prosecuted an appeal, and the judgment was reversed in an opinion reported in 165 Ky. 616.In that opinion the substantial and material facts are recited somewhat in detail, and it will be wholly unnecessary to repeat them here, they being practically the same upon the last trial as on the first one.The first judgment was reversed, as will appear from the opinion, upon the two grounds that (1)the court erred in permitting the defendant to testify, since it was held that under subsection 2 of section 606 of the Civil Code of Practice he was an incompetent witness; and, (2) that the court erred in giving two instructions which are set out in the opinion, but all other questions were left open.Upon the second trial, in which the court eliminated the errors pointed out when the case was first here, the jury again returned a verdict for the defendant, and to reverse it this appeal is prosecuted.

There are numerous errors urged against the correctness of the judgment, but we deem it necessary to consider only such as will be discussed in this opinion.From the testimony as recited upon the former appeal, and which was the same upon the last trial, it appears that Mrs. Barrett had long been a sufferer, and perhaps because of her almost constant pain she had become addicted to the use of morphine, and in addition had contracted other ailments more or less dangerous, and at the time of the operation complained of she was in an exceedingly precarious condition.The operation occurred in November, 1911, and in the early part of that year two minor operations had been performed by the defendant, but the one in November, which is termed the major operation, is the one about which negligence is charged.Other physicians and a trained nurse attended the operation, and the latter gave to and received from the defendant the gauze pads which he used while performing the operation.The patient showed signs of dissolution, and the cavity was hurriedly closed up to prevent it, and shortly thereafter the nurse discovered that one of the pads was missing.In closing up the cavity, as is usual in such cases, a gauze drainage was arranged so as to let out pus or other deleterious substances, and in it was one of the pads which was discovered four days after the operation by the wound being opened up, at which time some of the parts, including some of the smaller intestines, were found to be inflamed and the patient shortly died.The chief act of negligence complained of is that of leaving the pad in the patient, but under the evidence and instructions of the court the jury found that this was not an act of negligence, or if it was it could not be termed the proximate cause of the patient's death, and accordingly returned the verdict complained of.

It is first insisted that the court erred in permitting a hypothetical question to be asked of two professional witnesses introduced in behalf of defendant, because it is claimed that there was incorporated in that hypothetical question facts which were not proven, or for which there was no evidence tending to establish them.Eleven such wrongfully incorporated facts are pointed out as being erroneously included in the complained of hypothetical question, which is so long that we will not encumber this opinion with its repetition, but we have thoroughly examined the record and we are convinced that counsel is in error when he says that there was no evidence to support the assumption of the existence of the alleged wrongfully incorporated facts.That it is error to incorporate facts in a hypothetical question propounded to an expert, for the existence of which there is no testimony in the record, is thoroughly established.In support of it counsel cite many authorities from the text books and opinions from foreign courts, and also the case of Champ v. Commonwealth, 2 Met. 17.A still later case from this court upholding the rule is that of Kentucky Traction & Terminal Company v. Humphrey, 168 Ky. 611, in which many authorities both foreign and domestic are referred to, but if the complained of vice has no existence in point of fact, manifestly there is no room for the application of the rule, and as stated we are convinced that there is substantial evidence in the record authorizing the court to allow the predicating of the hypothetical question upon all of the material facts complained of, and this objection will have to be denied.

Again, it is insisted that there was error in permitting the professional witnesses to state in substance that the case was practiced according to the approved methods of the medical profession, and that according to the opinions of those witnesses the patient in her diseased and run-down condition would have and as a matter of fact did die from those conditions, notwithstanding there might have been negligence in the manner complained of.It is, of course, fundamental that although an act may be negligent and involve a violation of duty, still before a cause of action can be predicated thereon the injury flowing therefrom must have been the proximate result of such derelictions.While it is not denied in this case that the pad was overlooked and left in the patient's body, yet it is clear that it was confined in the drainage gauze, which was an essential and necessary part of the operation, and it was therefore not in a condition to produce injurious consequences.However that may be, the rule is that while an expert witness may not take the place of the jury by stating whether certain acts constitute negligence, he may give his opinion in regard to matters which require scientific or specialized knowledge or experience, and for which the general common sense and practical experience of the jury are inadequate.The rule is thus generally stated in 11 R. C. L. 572, wherein the further...