Benson v. Dean

• Decision Date: 28 October 1921
• Citation: 232 N.Y. 52,133 N.E. 125
• Parties: BENSON v. DEAN.
• Court: New York Court of Appeals Court of Appeals

232 N.Y. 52

133 N.E. 125

BENSON

v.DEAN.

Court of Appeals of New York.

Oct. 28, 1921.

Action by Henry Benson against William Canfield Dean. From a judgment and order of the Appellate Division (190 App. Div. 937,179 N. Y. Supp. 910), affirming, by a divided court, a judgment of the Trial Term for plaintiff and against defendant in the sum of $2,634.50, defendant appeals.

Judgment reversed and new trial ordered.

Appeal from Supreme Court; Appellate Division, First Department.

Edwin A. Jones, of New York City, for appellant.

Joseph R. Truesdale, and Edwin A. Falk, both of New York City, for respondent.

POUND, J.

This is an action against a physician and surgeon, to recover damages for failure to use reasonable skill, judgment, care, and diligence in treating a patient. The plaintiff had been suffering from rectal trouble. He consulted the defendant who examined him, recommended an operation for ulcers, and in March, 1916, operated under a general anaesthetic at a private hospital, with the assistance of Dr. Blaise, who gave the anaesthetic, and Dr. Kasper, a specialist in general surgery. After making progress, while sewing up one incision or wound, Dr. Kasper's needle broke. The defendant and Dr. Kasper probed to locate the part of the needle that had broken off, but, failing to find it, completed the operation, leaving the broken part of the needle behind. Plaintiff was not taking the anaesthetic well, and it was necessary to act with haste. The defendant did not tell the plaintiff, his family, or friends about this needle. The plaintiff remained in the hospital for about two weeks, and was thereafter in his house for four or five weeks. When he returned to work, he had to stop at times and go home because of pain in the rectum. He continued to consult the defendant, who continued to treat him from the time of the operation in March, 1916, to January, 1917. During this entire period he suffered intensely. In January, 1917, defendant again took him to a hospital and put him under an anaesthetic, but he then merely burned some small rectal ulcers with nitrate of silver. The pain and discharge continued. The defendant had prescribed an irrigation treatment, which was extremely painful. At times he put a rubber covering over his finger and inserted it in plaintiff's rectum. Whenever the irrigating tube or the finger touched a certain spot plaintiff felt severe pain. After he returned from the hospital the defendant continued to attend him, still causing severe pain when he touched the tender spot. This treatment continued until the summer and fall of 1917. No suggestion was made to plaintiff that the advice of a specialist in such troubles should be sought. A lump finally formed in the wall of the rectum, and when plaintiff called the defendant's attention to it, defendant said he would have to be operated on again. Then the plaintiff ceased going to the defendant and went to Dr. Saphir, a rectal specialist, who treated him and operated on him, opening an abscess at the tender spot and removing therefrom the broken needle. Plaintiff remained in the hospital for three days, was treated by Dr. Saphir at his office for some weeks, and was then cured of all discharge and pain, and has had no trouble since.

[1][2] The facts are not disputed in any material way. The first question of law is whether plaintiff established defendant's legal liability. Defendant contends that on the undisputed evidence he used a proper degree of professional skill and judgment, and that he was not responsible for the bad result. A physician is bound only to have and to exercise competent skill in treating a patient. Pike v. Honsinger, 155 N. Y. 201, 49 N. E. 760,63 Am. St. Rep. 655.

Plaintiff sought to establish his case without the aid of medical experts. His theory seems to have been that the lack of skill or want of care was so obvious from the history of the case that expert testimony was unnecessary; that the loss of a portion of the needle in an operation, coupled with a bad result, standing alone, is evidence of unskillful surgery. Ordinarily, jurors would find difficulty, without the help of medical evidence, in determining the right of a patient to recover against his physician for malpractice based on lack of scientific skill, but the results may be of such a character as to warrant the inference of want of care from the testimony of laymen, or in the light of the knowledge and experience of the jurors themselves. Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323;Evans v. Roberts, 172 Iowa, 653, 154 N. W. 923;Wharton v. Warner, 75 Wash. 470, 135 Pac. 235.

The history of the case may be divided into two parts: First, the operation itself with the incidents of the broken needle, the failure to find the portion that remained in the rectum, and the act of leaving the needle and sewing up the wound; and, second, the subsequent treatment of plaintiff by defendant for rectal ulcers, covering a period of about 20 months, when the symptoms might be found to be attributable to the presence of the needle. As to the first branch of the case, the uncontradicted evidence shows that, with the utmost care, surgical needles sometimes break and the broken part sometimes escapes detection in the course of an operation; that the proper course of treatment in such an emergency in a case like the one under consideration suggests that, rather than to subject the patient to the dangers incident upon further cutting under an anaesthetic, the...