Beatrice Twombly v. Louis N. Piette

• Decision Date: 06 October 1926
• Citation: 134 A. 700,99 Vt. 499
• Parties: BEATRICE TWOMBLY v. LOUIS N. PIETTE
• Court: Vermont Supreme Court

134 A. 700

99 Vt. 499

BEATRICE TWOMBLY v. LOUIS N. PIETTE

Supreme Court of Vermont

October 6, 1926

February Term, 1926.

ACTION OF TORT against a physician for malpractice. Plea, general issue. Trial by jury at the September Term, 1925, Orleans County, Moulton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

J.W Redmond for the defendant.

W.W Reirden, E.A. Cook, and D.E. Porter for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK and BUTLER, JJ. At the hearing of this case TAYLOR, J., sat, but by reason of his death, he took no part in the decision of the case.

OPINION

WATSON

STATEMENT BY CHIEF JUSTICE WATSON. The plaintiff's evidence tended to show that on July 3, 1924 in the forepart of the afternoon, her mother, Mrs. Nettie S. Twombly, with whom plaintiff was then living at Newport Center, telephoned to the defendant, Dr. Piette of Newport, who it appeared was a practicing physician and surgeon, telling him that her daughter, the plaintiff, had had mosquito bites on her head and accidentally combed through them so they were causing her trouble with keeping her hair in curl, and water come from them, and asking him if he could send something to put on to heal and stop them; that in answer thereto defendant said he could, said he would send a white powder over on the 5 o'clock train to be used, further telling Mrs. Twombly to get the moisture off those places, those spots, and just dip the ends of the fingers in the powder and put it on those places; that some powder was received upon the arrival of the train, and some was applied to at least three of those places on plaintiff's scalp as directed by the defendant; that as soon as the powder was so applied, it burned plaintiff's head, causing her to exclaim "It burns my head so I cannot stand it." That directly after the powder was put on plaintiff's head, Mrs. Twombly called up defendant by telephone and told him the powder was burning plaintiff's head so she could hardly bear it, and asked him if it should act like that. To this question defendant answered that "It shouldn't burn," and asked what kind of a looking powder it was, and if it was white. On being told that it was a white powder, defendant said he did not understand why it should be like that--that he had telephoned the druggist to send it.

That the powder sent by the druggist to Mrs. Twombly under the direction of the defendant was what is known as bichloride of mercury, or (under another name) corrosive sublimate, and that the same was received by the plaintiff and used on her head for the purpose and in the manner above described, conclusively appeared from the evidence.

The evidence of the defendant tended to show that bichloride of mercury is a poison, and is corrosive, that is, it will corrode, burn tissue, and is not a proper thing to prescribe to be applied to anyone's scalp; that there is another drug which is known as and called "mild chloride of mercury," popularly called "calomel." That this latter drug is considered not a poison when applied externally, and is very much prescribed for external applications and so used, in the shape of powder, by physicians generally, in skin affections. Defendant testified that in the afternoon of July 3, 1924, he received a telephonic communication from Mrs. Twombly of Newport Center, saying that her daughter had some trouble with her scalp, some mosquito bites which had started to ooze, making the hair wet, and asked him if he wouldn't send her out something by the mail; that defendant, deciding from the description given by Mrs. Twombly that the trouble with the daughter was not mosquito bites, but was what is known as impetigo, told her that he would order the Bigelow Pharmacy (of Newport) to send out some mild chloride of mercury, and told her it would be a white powder and she should apply it by dipping the fingers into the powder and apply it to the scalp after the scalp had been dried; that defendant then called up the Bigelow Pharmacy by telephone, and Mr. Slafter, one of the partners and a registered pharmacist, answered; that defendant then asked Mr. Slafter if he would send out to Mrs. Twombly, in Newport Center, "one ounce of mild chloride of mercury," to which Slafter answered yes, that he would; that the next thing he knew about the matter was in the early evening, when he received another telephone call from Mrs. Twombly saying that the medicine she had received burned the daughter's scalp; that defendant told her it should not, saying "There must be something wrong somewhere--better send the girl out to see me," and the girl was sent out; that when the girl came defendant saw that her hair was all wet and that there was an abundant supply of powder in the hair, and he thought some crystals, and the scalp was very red, showing irritation; that defendant told them he thought there was a mistake made, etc.

In rebuttal, the pharmacist Slafter was called as a witness by the plaintiff and testified that on July 3, 1924, he was told by defendant over the telephone, to send "one ounce of bichloride of mercury" to Mrs. Twombly at Newport Center, and that it was sent on the train leaving Newport about 5 o'clock; that it was wrapped up in a piece of paper with a sublimate label around it, and that in turn, placed inside of a paste-board box with a label on the box, was done up and mailed; that the witness, when defendant told him by telephone to send that bichloride of mercury, made an entry of the order as soon as possible on a record book kept at the drug store, in which a record was made of poisons of certain nature there sold. The record book was put in evidence and showed under date of July 2 (should have been July 3), 1924, "Mrs. Twombly, Newport Center. Who for? Ditto marks, amount, one ounce, drug, Hg Cl-2. Ordered by Dr. Piette. Sold by Slafter." The letters and figure, "Hg Cl-2," is the chemical formula for "bichloride of mercury."

Mrs. Twombly testified in rebuttal that at the time she talked with defendant in the afternoon of July 3, 1924, he did not tell her that he would order Bigelow's Pharmacy to send out a powder or some medicine to be used on the plaintiff's head; that he did not say anything to her about any drug store sending her anything.

In the course of the trial it was conceded on behalf of the defendant that if he prescribed bichloride of mercury to be applied to plaintiff's scalp he was guilty of gross negligence. But the question remained whether he in fact prescribed that substance.

The verdict was in favor of the plaintiff, and the case is for review on defendant's exceptions.

The question whether defendant ordered the pharmacist to send to Mrs. Twombly "bichloride of mercury," or whether it was "mild chloride of mercury," was submitted to the jury in a manner satisfactory to the defendant, the jury being told in that connection that if defendant told the druggist to send "mild chloride of mercury" and the druggist, through mistake, sent "bichloride of mercury," then the defendant was not responsible for the negligence or fault of the druggist and their verdict must be for the defendant. The court further instructed the jury in effect that, it being conceded on behalf of the defendant that if he prescribed "bichloride of mercury" to be used on plaintiff's scalp he was guilty of negligence as a physician, that in directing the druggist to send "bichloride of mercury" to Mrs. Twombly, if defendant did so direct, this was a prescription of it and, if that was the proximate cause of the injuries suffered by the plaintiff, she was entitled to recover in this action.

Under the foregoing instructions, to which no exception was taken, the jury must have found that defendant's order to the pharmacist was to send "bichloride of mercury," for they returned a verdict for the plaintiff.

This brings us to the consideration of the question of proximate cause. Defendant's fourth request, to charge was: "If you find that Dr. Piette ordered Slafter (pharmacist) to send Mrs. Twombly 'bichloride of mercury,' it is admitted that, in the circumstances, such ordering was gross negligence on the part of Dr. Piette; but, if you also find that, if Slafter had, as the law required him, ascertained the proposed use of the ordered drug, he would not have sent the 'bichloride of mercury,' then, notwithstanding the said negligence of Dr. Piette, the sole proximate cause of the sending of the 'bichloride of mercury,' was the negligence of Slafter, and Dr. Piette cannot be held liable therefor."

G. L. 6282 relates to regulation of the sale of certain specified poisonous drugs, including "corrosive sublimate," and keeping a record of such sales. Among other things, this section provides as follows: "When a sale is made by anyone of any of such drugs, * * *, such sale shall be entered and recorded in a book kept for that purpose, giving the name of the article sold, date of sale, to whom sold, residence of purchaser, for whom purchased, the use to be made of the article or drug purchased and the name of the salesman or clerk making such sale."

At the time when, by defendant's direction, the bichloride of mercury was sent to Mrs. Twombly by pharmacist Slafter, the latter made such a record of the sale, complete with the single exception that it did not state the use to be made of the drug. Instead of the record stating the use, it contains the words "ordered by Dr. Piette." The witness Slafter testified that he did not find out the proposed use to be made of the drug; that if he had known it was to be used on the scalp of a human being, he never would have sent it. In this connection defendant contends that the original wrong on his...