Britton v. Hartshorn

• Decision Date: 29 July 1931
• Citation: 113 Conn. 484,156 A. 48
• Court: Connecticut Supreme Court
• Parties: BAITTON v. HARTSHORN.

156 A. 48

113 Conn. 484

BAITTON v. HARTSHORN.

Supreme Court of Errors of Connecticut.

July 29, 1931

Appeal from Superior Court, New Haven County; John Rufus Booth Judge.

Action by Alice R. Britton against Willis E. Hartshorn to recover damages alleged, in the first count, to have resulted from unskillful performance of a surgical operation, and, in the second count, from negligence therein, brought to the superior court in New Haven county and tried to the jury. Verdict and judgment for defendant and plaintiff appeals.

Charles S. Hamilton, of New Haven, for appellant.

Lawrence A. Howard and Cyril Coleman, both of Hartford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN, J.

The plaintiff offered evidence that she was advised by her physician, Dr. Black, to go to Griffin Hospital at Derby and submit to an operation to be performed by the defendant, for the removal of a uterine tumor, consented to do so, and went to the hospital for that purpose. The defendant made a physical examination, and informed her that the tumor could only be cured by removal. At no time was anything said to her about an exploratory operation for the purpose of ascertaining the kind of tumor or its size or extent, or any other operation than one to remove it. She consented to this and was etherized, and, upon recovering consciousness, found that an incision about five inches long had been made in her abdomen, but later discovered that the tumor had not been removed, and afterward it was removed by another surgeon. In consequence of the acts of the defendant, she suffered from phlebitis and shock, and incurred expenses in attempting to obtain a cure therefrom.

The defendant, after proof of his professional qualifications, offered evidence that he was asked by Dr. Black to perform an operation upon the plaintiff, at the Griffin Hospital, for the removal of an abdominal tumor. He made a thorough pre-operative examination, and found the plaintiff suffering from a large tumor filling the entire abdomen. Tumors of this kind are either cystic, fibroid, or fibro-cystic. Cystic tumors are filled with fluid, and are usually easily removed; a fibroid tumor is a solid mass and, particularly when adherent to surrounding tissue, is difficult to remove; fibro-cystic tumors are partly cystic and partly fibroid, and the difficulty of removal depends upon the relative proportions and whether the growth is attached to the body wall by a single stem or by numerous adhesions. It is impossible to determine before an incision is made whether a tumor is cystic, fibroid, or fibro-cystic. The pre-operative examination indicated a probability that the plaintiff's tumor was cystic or fibro-cystic. The plaintiff was informed by the defendant that he would do nothing to endanger her life, and that, if he found that the growth was too involved to permit its removal without danger to life, no extensive operation would be performed at the time, and the plaintiff assented. Upon making a preliminary incision to inspect the tumor and determine the procedure to be followed in its removal, the defendant found an entirely fibrous tumor fed by numerous large blood vessels and firmly adherent to various organs and the body wall and securely lodged in the pelvic cavity. In conference with Dr. Black and Dr. Finn, who were assisting, he decided that to then remove the tumor would, under the circumstances, endanger the plaintiff's life, and that it should be removed later at the New Haven General Hospital. The incision was then closed, and the plaintiff made a rapid, uneventful recovery.

The defendant also offered proof that his decision not to complete the operation was based on the facts that he was working at a hospital other than, and not so well equipped as, the New Haven General, where he usually operated, and was without his team of trained assistants who were accustomed to his technique. At the New Haven hospital there are on call for immediate use persons whose blood is typed in advance for use if transfusion is necessary, and numerous surgeons available as assistants in the operating room in an emergency. Such a serious operation would have necessitated minute post-operative care by the defendant, who could give it better in the New Haven hospital. When the plaintiff recovered consciousness, she was advised both by the defendant and by Dr. Black of the decision, and that it would be necessary to come into the New Haven hospital to have the operation performed, but she neglected and refused to follow this advice. After eighteen months of medical treatment by other physicians, she was operated on at Saint Raphael's Hospital, New Haven, by Dr. Verdi, with the assistance of his staff and Drs. Black and Allen, the operation consuming an hour and fifty-five minutes, and the tumor, when removed, weighing thirty-eight pounds. When the defendant began the operation, he expected to be able to remove the tumor, and it was not until the incision revealed an unusually dangerous condition that he abandoned his plan to remove it. He offered expert opinion evidence that he used due care and skill in his treatment, operation, and care of the plaintiff, and excellent judgment in refusing to continue the operation under the circumstances.

The assignments of error relate to failure to charge as requested, portions of the charge as given, and rulings on evidence. So far as the requests set forth correct propositions of law, they were adequately covered, in substance, in the charge as given. Requests which would impose upon the defendant a requirement that he exercise such a degree of care and skill as to enable him, in all cases, to operate successfully and effect a cure, imposed a more exacting standard of qualifications and duty than the law contemplates, and were rightfully refused. So also were requests to the effect that consent of the plaintiff to undergo an operation for the removal of the tumor did not authorize a lesser operation such as the defendant in fact performed, even though the greater operation was undertaken but was discontinued because of conditions discovered, in the course of it, rendering immediate removal hazardous and therefore inadvisable. The finding discloses nothing which required or gave occasion for instructions based upon a premise that the defendant undertook or intended at the inception to perform an exploratory operation, only.

Error is assigned in the instruction given that: " Negligence and unskillfulness are not presumed; they must be proved. In the absence of evidence to the contrary, the law will presume from the physician's right to exercise his profession that he has not violated his duty to exercise it with the requisite care and skill." This was preceded by a charge that " the burden rests upon the plaintiff, if she is to recover, to prove, by fair preponderance of the evidence *** the essential controverted facts set forth in the complaint," and followed by " the actual actions or omissions necessary to show that ordinary skill has not in fact been exercised in a particular case, must be established by a preponderance of the evidence." Both the wording and the context show that the court was then referring only to the burden of proof. The burden imposed upon a physician or attorney for the purpose of making out his case, in chief in an action for compensation for services, is satisfied, as to the element of use of care and skill, by the " theory of law which presumes from the evidence of his right to exercise his profession, that he has not violated his duty to exercise it with the requisite care and skill." A defense that such care or skill has not in fact been exercised must be established by the defendant by showing, by a preponderance of the evidence, acts or omissions constituting such violation of duty. Styles v. Tyler, 64 Conn. 432, 464, 30 A. 165; Slade v. Harris, 105 Conn. 436, 439, 135 A. 570. The same principle, in essence, is applicable in a malpractice case, and requires the plaintiff, in chief, to introduce evidence in support of his necessary allegations of want of care or skill, before the defendant is called upon to produce evidence upon that issue, and the burden is upon the plaintiff ultimately to establish these elements by a preponderance of the evidence. Sheldon v. Wright 80 Vt. 298, 67 A. 807, 814; Priest v. Dodsworth, 235 Ill. 613, 617, 85 N.E. 940, 14 Ann.Cas. 340; Fincher v. Davis, 27 Ga.App. 494, 108 S.E. 905; Georgia Northern Ry. Co. v. Ingram, 114 Ga. 639, 40 S.E. 708; Hanners v. Salmon, 216 Ky. 584, 288 S.W. 307; Angulo v. Hallar, 137 Md. 227, 112 A....