Bennett v. Murdy
| Decision Date | 12 August 1933 |
| Docket Number | 7416. |
| Parties | BENNETT v. MURDY. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brown County; Van Buren Perry, Judge.
Action by Marie Bennett against Robert Murdy. From a judgment for plaintiff and an order denying defendant's motion for a new trial, defendant appeals.
Affirmed.
Williamson Smith & Williamson and Harkin & Noll, all of Aberdeen, for appellant.
Pat Morrison, of Mobridge, and H. O. Hepperle, of Aberdeen, for respondent.
In March, 1930, plaintiff employed defendant to do certain surgical work, and on the 29th day of March, 1930, defendant performed an operation upon the plaintiff for the removal of two middle turbinal bones, called turbinates in the briefs from her nasal cavity. A local anaesthetic was administered and the turbinals were removed by using a scissors which cut through the base of the bony structure. Plaintiff claims that during the operation portions of the turbinate bones were lost. One was about the size of a dime though rectangular in form, and the other about the size of the end joint of the little finger. She claims that during the operation, and after the turbinals had been severed, the defendant was unable to find them: that he probed for them repeatedly and finally passed the probe clear through her nasal cavity while her mouth was open so that he could see the probe as it passed through, but was unable to find the turbinals, and stated that they must have gone down. It is further contended that the two pieces of turbinate bone passed down her throat into her trachea and lodged in her bronchial tubes or lungs, and as a result plaintiff developed severe illness and acute tuberculosis. At the time she commenced this suit, she had been confined in the state tuberculosis sanatorium at Sanator, S. D., for a period of approximately eighteen months. The record contains considerable medical testimony covering a large amount of explanatory matter as to how operations for the removal of turbinal bones are performed, testimony as to the anatomy of the nose, throat, and lungs, also the customary methods of performing such operations, the treatment after the operation, the methods and surgical instruments used in the discovery and removal of foreign objects which may have been inhaled into the lungs. Some of the medical testimony was elicited through the use of hypothetical questions and some testimony from examination of the plaintiff by medical witnesses. There is also testimony by nonmedical witnesses relating to facts as to the operation and occurrences after the operation.
After the operation, plaintiff developed a violent cough. The defendant prescribed certain treatment, and it would seem that some three or four times thereafter made certain examinations of the plaintiff's condition. At the close of the plaintiff's case and at the close of all of the evidence, the defendant moved for a directed verdict, which was denied. The jury returned a verdict for the plaintiff. A motion for judgment notwithstanding the verdict was made and denied. Thereafter a judgment was made and entered, and a motion for new trial was made and denied. The defendant is now in this court upon an appeal from motion denying new trial and from the judgment.
We have before us a large and voluminous record which contains much matter to be decided and condensed into an opinion. Space will not permit us to treat specifically and at length all matters raised by the appellant. We will therefore confine this opinion to the vital and essential parts controlling in the facts and law to be applied in this case. The evidence discloses the facts that respondent was operated on in the Lincoln Hospital at Aberdeen, S.D. There was a nurse present during the operation. The appellant anaesthetized the parts and used certain instruments upon the respondent's nose while she was sitting on a chair in front of him. After the severance of the bone, appellant remarked that he could not see what he was after. Immediately thereafter he probed around in the nose. The respondent was required to open her mouth, and he looked into the mouth and probed around, pushing the probe through so that he could see it in the back part of her mouth. The respondent's version is that appellant stated that he was perfectly satisfied that the severed bone was not in her head and that it had gone down. He then operated on the other turbinal bone and removed it.
The respondent urges in support of her claim of negligence that the appellant was careless in the performance of the operation in that he failed to remove the severed bones from the system of the patient; that such an operation implies, not only a severance but a complete removal from the system, so that the severed bones do not cause injury to the parts of the body, and that negligence in part consisted of failure to safeguard the patient against matters incident to the operation; that the appellant failed to exercise due care in getting these bones from the body of the patient and in permitting them to remain in a dangerous location.
The situation is quite similar to cases where surgeons leave instruments, sponges, and other foreign articles inside of patients operated upon. See Palmer v. Humiston, 87 Ohio St. 401, 101 N.E. 283, 45 L. R. A. (N. S.) 640, and Ault v. Hall, 119 Ohio St. 422, 164 N.E. 518, 60 A. L. R. 128; 28 N. C. C. A. 658. From the evidence it would appear that one of the turbinates had gone down into respondent's system and that the appellant was looking for it. This evidence was not denied by the appellant. The appellant's negligence in performing the operation was submitted to the jury under appropriate instructions and the acts of the defendant in severing the turbinates, the caution and care he used in performing his work, the care and skill he used in extracting and preventing the turbinates from falling into the respondent's throat and ultimately being inhaled into her lungs were all questions for the jury, who had a right to consider the degree of care and skill exercised in the severing of the turbinates and the swabbing and probing in the search for the missing parts. All of this testimony was submitted to the jury, together with the evidence produced by both experts and nonexperts. There was evidence by experts as to whether or not appellant used due care and as to methods or treatment ordinarily used among physicians and surgeons of ordinary skill and learning of such members of the profession as were practicing within the appellant's community. The appellant argues that he is not liable, and that he comes within the rule that if there was any negligence it was a matter of judgment, and that he did possess the requisite qualifications and applied his skill and judgment with ordinary care, and that, under previous decisions of this court, he is not liable for an honest mistake or for an error of judgment in making a diagnosis or in prescribing a mode of treatment.
We feel that the doctrine of nonliability because of error of judgment is not applicable here, for the reason that the appellant made no attempt in his defense to bring himself within that rule. We have examined the evidence with considerable care, and especially appellant's testimony, and find that he stands squarely upon the contention that no turbinate bones were lost and no such bones ever reached the respondent's lungs. The appellant's testimony in that respect is in substance that the turbinate bones came out in one whole piece, and that that is true of both sides of the nose; that he used a little snare to remove the turbinate bones, and that there was no part of the turbinate that went into the patient's system at all; that he fastened it to a clip and removed the entire part he severed from her nose, and that was true as to both sides of the woman's nostrils. Appellant in part testified:
There is substantial evidence to the effect that the respondent during violent paroxysmal coughing coughed up a small piece of bone about the first or second week in April, 1930, that she showed it to Dr. Ramsey, and later took the piece of bone and showed it to the appellant at the clinic at Aberdeen. The respondent claims that she gave the appellant this piece of bone, and that he told her at that time that without a doubt it was the piece of turbinate bone, and that he did not give it back. There is evidence that, while respondent was confined in the sanatorium, she coughed up another piece of turbinate bone during a violent coughing spell. This piece of bone was preserved and introduced as an exhibit. There is testimony in corroboration in both instances so that the respondent's testimony of the turbinated bones being expelled from the lungs does not stand on respondent's testimony alone. If the testimony of the appellant to the effect that he removed the pieces of turbinated bone and examined them was reasonable and worthy of belief, why did he push a probe through the nasal cavity and why did he tell the respondent that the bone must have gone down? Why did he make several X-ray and fluoroscopic...
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