Brown v. Keaveny

• Citation: 326 F.2d 660,117 US App. DC 117
• Decision Date: 12 December 1963
• Docket Number: No. 17490.,17490.
• Parties: Grace Fisher BROWN, Appellant, v. John F. KEAVENY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

117 US App. DC 117, 326 F.2d 660 (1963)

Grace Fisher BROWN, Appellant, v. John F. KEAVENY, Appellee.

No. 17490.

United States Court of Appeals District of Columbia Circuit.

Argued October 17, 1963.

Decided December 12, 1963.

Petition for Rehearing Denied January 15, 1964.

Mr. Earl H. Davis, Washington, D. C., for appellant.

Mr. H. Mason Welch, Washington, D. C., with whom Messrs. J. Harry Welch, J. Joseph Barse, Walter J. Murphy, Jr., and James A. Welch, Washington, D. C., were on the brief, for appellee.

Before WASHINGTON, DANAHER and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied January 15, 1964.

PER CURIAM.

This is a malpractice case, in which the complaint alleged that the defendant oral surgeon had negligently performed an operation for the removal of diseased and impacted teeth, during which plaintiff's jaw was broken. The trial court directed a verdict for defendant, at the close of plaintiff's case, on the issues of specific negligence and res ipsa loquitur. It left with the jury the issue of warranty; this was ultimately decided in favor of defendant. This appeal followed.

We find no error affecting substantial rights. Plaintiff offered no evidence of specific negligence, or evidence that defendant did not exercise "`that degree of care and skill ordinarily exercised by the profession in his own or similar localities'." Rodgers v. Lawson, 83 U.S.App.D.C. 281, 282, 170 F.2d 157, 158 (1948). As to res ipsa loquitur, that doctrine applies only "where the occurrence complained of ordinarily would not happen in the absence of negligence." Quick v. Thurston, 110 U.S.App.D.C. 169, 172, 290 F.2d 360, 363, 88 A.L.R.2d 299 (1961). "The thing does not speak for itself" unless a layman can say as a matter of common knowledge that the consequences of the professional treatment are not those which ordinarily occur if due care has been exercised. The plaintiff may not rest his case on the mere fact of his injury or rely upon the jury's untutored sympathies. In short, where the question turns on the merits and the performance of scientific treatment, the issue may not be resolved by the jury without the aid of expert opinion. Here the plaintiff offered no such evidence. Rodgers v. Lawson, supra, 83 U.S.App. D.C. at 285, 170 F.2d at 161; Hohenthal v. Smith, 72 App.D.C. 343, 346, 114 F.2d 494, 497 (1940).

Affirmed.

WRIGHT, Circuit Judge (dissenting):

The court finds that the patient's claim founders on the wall of protection with which the law surrounds the doctor. I would hold that the jury should have been permitted to decide whether an inference of negligence should be drawn from the fact that, in removing her tooth, the doctor fractured her jaw.

The law of malpractice is clearly defined in most jurisdictions as it is here. Before the plaintiff-patient can recover, he must show that his injury resulted from his doctor's failure to exercise that degree of care and skill exercised by a doctor practicing the same speciality in his locality.¹ In mounting such proof, the plaintiff must prove by testimony from the defendant's own professional colleagues what the degree of care and skill in the area is and that the defendant failed to exercise such care and skill.² The human instinct for self-preservation being what it is, there is often disclosed in the trial of these cases what has been referred to as the conspiracy of silence — the refusal on the part of members of the profession to testify against one of their own³ for fear that one day they, too, may be defendants in a malpractice case.

In an effort to lighten this enormous burden, plaintiff-patients have sought to use the doctrine of res ipsa loquitur,⁴ on the theory that, at least in those cases where the conditions which cause the injury are completely under the control of the doctor, the patient has no way of knowing, and therefore showing, what the doctor did that lacked the degree of care and skill required by the law. Most courts have now recognized the application of this doctrine in malpractice cases, but in a very limited area. Where the cause of the injury is such as to be obvious to the lay mind, like leaving a sponge or a surgical instrument in the body during an operation, no expert medical testimony is required to show that, but for negligence on the part of a surgeon, the injury would not have resulted.⁵ This court has recognized the application of res ipsa in such situations.⁶

Res ipsa is a rule of evidence which permits an inference of negligence where the incident in suit ordinarily would not occur in the absence of negligence. The important word in the definition of res ipsa is "ordinarily." In order to invoke the doctrine, "the plaintiff is not required to eliminate all other possible causes, or inferences; and all that is needed is evidence from which reasonable men can say that on the whole it is more likely that there was negligence associated with the cause than that there was not." Prosser, op. cit. supra Note 1, § 42, p. 204. Primary to the application of the doctrine is exclusive control in the defendant of the cause of the injury. Once this control is established and the resulting "injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care." San Juan Light Co. v. Requena, 224 U.S. 89, 98-99, 32 S.Ct. 399, 401, 56 L.Ed. 680 (1912). In short, when the result is extraordinary and injurious, "a jury may fairly find that it occurred as a result of negligence." Jesionowski v. Boston & Maine R. Co., 329 U.S. 452, 458, 67 S.Ct. 401, 404, 91 L.Ed. 416 (1947).

The patient here entered the office of the doctor, a specialist in oral surgery, to have an impacted molar removed. After a short wait a general anesthetic, sodium pentothal, was administered. The operation to remove the impacted molar involved chipping the jawbone using a hammer and chisel. After the operation the doctor did not realize he had broken the jawbone, in spite of the fact that it was a compound fracture, that is, the broken bone was showing through the tissue. His attention to the fracture was called by his nurse.

When the defendant was asked on cross-examination, "What broke her jaw, Doctor?" he answered, "We don't know. I am of the opinion that there must have been a muscle contraction and that muscle contraction broke the jaw. Just the same as a baseball player will break his arm, throwing the...