Booth v. Andrus

• Decision Date: 28 September 1912
• Docket Number: No. 16,630.,16,630.
• Citation: 137 N.W. 884,91 Neb. 810
• Parties: BOOTH v. ANDRUS.
• Court: Nebraska Supreme Court

91 Neb. 810

137 N.W. 884

BOOTH

v.ANDRUS.

No. 16,630.

Supreme Court of Nebraska.

Sept. 28, 1912.

Syllabus by the Court.

In an action for malpractice, a physician or surgeon is entitled to have his treatment of a patient tested by the rules and general course of practice of the school of medicine to which he belongs.

Physicians and surgeons are not required to possess the highest knowledge or experience, but the test is the degree of skill and diligence which other physicians in the same general neighborhood and in the same general line of practice ordinarily have and practice.

Physicians and surgeons do not impliedly warrant the recovery of their patients, and are not liable on account of any failure in that respect, unless through some default of their own duty.

Where, during the trial of an action against a surgeon for damages for malpractice, the plaintiff voluntarily submits a portion of her body to the inspection of the court and jury, it is error for the court to refuse to permit an examination, by a limited number of reputable surgeons of defendant's selection and school, of that portion of the body so exhibited.

And where, in such an action, the claim is single, and is based upon two separate operations on the same day, upon two different portions of plaintiff's body, if plaintiff voluntarily submits to the inspection of the court and jury that portion of her body upon which one of such operations was performed, it is error for the court to refuse to permit an examination, by a limited number of reputable surgeons of defendant's selection and school, of the other portion of the body upon which the other operation was performed.

In an action for damages against a surgeon for malpractice, where the allegations and prayer of the petition are based solely upon the defendant's alleged negligence and want of care in the performance of certain surgical operations and in the administration of medicines in connection therewith, at plaintiff's home and in defendant's hospital, it is prejudicial error for the court to permit plaintiff to testify that, at another time and place, during the several months interim between such operations, defendant made an indecent proposal to her.

Instructions examined and referred to in the opinion held erroneous.

Where the preponderance of the evidence against the verdict of the jury is so great as to indicate that the verdict was probably the result of passion or prejudice, it will be set aside and a new trial ordered.

Evidence examined and set out in the opinion held insufficient to sustain the verdict and judgment.

Additional Syllabus by Editorial Staff.

In an action for malpractice, an instruction that the burden was on defendant to show that his prescriptions were proper and adapted to the end in view was erroneous; the presumption being that he performed his duty and prescribed correctly.

Appeal from District Court, Lancaster County; Stewart, Judge.

Action by Bettye P. Booth against Frederick M. Andrus. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Rose, J., dissenting.

L. C. Burr, C. C. Marlay, and B. F. Good, all of Lincoln (Sol. A. Wood, of Ft. Wayne, Ind., of counsel), for appellant.

T. J. Doyle and G. L. De Lacy, both of Lincoln, for appellee.

FAWCETT, J.

During the period of time covered by the petition, plaintiff was a married woman living with her husband, and defendant was a practicing physician and surgeon of the eclectic school. Defendant was first called to see plaintiff professionally in April or May, 1907, and continued to treat her from that time until September, 1908, at which time his ministrations ceased, and shortly thereafter this action was begun in the district court for Lancaster county to recover damages for alleged malpractice on the part of defendant in his treatment of plaintiff during the time above indicated. The jury returned a verdict in favor of plaintiff for $7,200, upon which judgment was entered, and defendant appeals.

The substantial averments of the petition are:

(1) That in the month of July, 1907, defendant carelessly and negligently, and without the knowledge and consent of plaintiff, produced an abortion of a living fœtus, and thereafter removed plaintiff from her home to a hospital owned and operated by defendant, and there put the plaintiff under the influence of an anæsthetic and curetted the plaintiff, subjecting her to great indignities and great pain, and further lacerated and injured the plaintiff.

(2) That about February 14, 1908, defendant advised plaintiff that a surgical operation was necessary, to shorten certain ligaments, and also suggested that he desired to remove plaintiff's ovaries, the latter of which plaintiff forbade. That the ovaries were not diseased, and it was not necessary to remove the same. That, notwithstanding such fact, defendant performed said operation and did so in such an unskillful manner that plaintiff was unnecessarily lacerated and mutilated. That an anæsthetic was administered to plaintiff by defendant. That no physician was called in to aid or assist in administering the anæsthetic or in performing the operation. That while plaintiff was unconscious defendant, without her knowledge or consent, removed her appendix, cut and lacerated the ligaments, and removed one of the ovaries, all of which was entirely unnecessary, thereby greatly impairing and permanently injuring the health of plaintiff.

(3) That during treatment of plaintiff defendant prescribed and used powerful and poisonous and deadly substances, known as “H. M. C. tablets No. 1,” and “H. M. C. tablets No. 11,” containing morphine, hyoscine, and other deadly poisons, and provided a hypodermic syringe, with which said poisons were injected into the system of plaintiff, thereby tainting her blood with said poisons, causing irritations and eruptions upon the skin which was superinduced solely by said treatment and the use of said poisons, causing constant, permanent, and “most powerful” irritation.

(4) That on or about May 11, 1908, defendant advised plaintiff that it would be necessary to perform a further operation to adjust the ligaments already referred to, and that it would be necessary to put her under the influence of an anæsthetic for that purpose. That plaintiff again gave imperative instructions not to remove the remaining ovary, that the same was not diseased, and it was not necessary to remove it; but notwithstanding this fact, after plaintiff was placed under the influence of an anæsthetic, her body was again mutilated by making an incision therein without her knowledge or consent and the remaining ovary removed. That the fallopian tube of plaintiff was also removed. That the operation was done in a careless, unsurgeonlike manner, and was entirely unnecessary. That it left plaintiff a complete physical and nervous wreck. That the use of the poisonous drugs above referred to was continued. That plaintiff was compelled by defendant to use the same and was told that she would die if she did not do so. “All of which was entirely unnecessary and highly injurious to the constitution and health of the plaintiff, and this plaintiff by the malpractice of defendant in the manner aforesaid was brought to such a state of acute suffering that defendant attempted to keep plaintiff in a state of unconsciousness continuously by the use of said opiates and poisons, which further wrecked and weakened her system and rendered her intensely nervous, and said germs of poison were injected into the system of plaintiff by defendant, and she was so impregnated therewith that the same continuously manifested itself in eruptions of the skin.”

(5) That prior to said assault “made upon plaintiff in the manner aforesaid by defendant” the general health of plaintiff was good, her constitution strong and unimpaired. Plaintiff was then 32 years of age, a married woman with prospect of a long life and the blessings and comforts and happiness of home and of rearing a family. That the assault and injury of the defendant “in the manner aforesaid” has rendered it impossible for plaintiff to conceive and to rear children; rendered her a constant and permanent sufferer, and that said injuries inflicted are permanent. That plaintiff has expended large sums of money in treatment and effort to cure the injuries inflicted upon her by defendant in the manner aforesaid in the sum of $1,000, all of which has been necessary. That she has been compelled to live away from the presence and companionship of her only child and to be constantly separated from her husband on account of the condition of health thus inflicted upon her by defendant, and for the reason of the premises has sustained damages in the sum of $50,000, for which amount she prayed judgment. Later, as an amendment to the petition, it was alleged that at the operation of May 11th above set out, defendant also made an incision in the plaintiff's body, extending from the lower part of the shoulder of the right side near the breast and continuing from there down around the breast, a distance of about seven inches. “Cut and lacerated the plaintiff without her knowledge or consent, under the pretext that the glands of the breast were affected with tuberculosis and it was necessary to remove the same, and greatly irritated that said part of plaintiff's body by the cutting aforesaid, and did then put 22 stitches in said opening, and did said act in a careless and negligent manner in this, that he did not use antiseptics, and by reason of the uncleanliness of said operation in not using proper antiseptics and clean and sterilized instruments, and in not having the hands in the proper cleanly condition, and in performing said operation when it was entirely unnecessary, the said plaintiff having no tubercular glands, thereby caused an eruption of the skin and septicemia and a poisoned condition of the blood, causing the right side of the breast of plaintiff, arm and leg on...