Bugg v. Security Ben. Ass'n

• Decision Date: 12 April 1941
• Docket Number: 35102.
• Citation: 112 P.2d 73,153 Kan. 522
• Parties: BUGG v. SECURITY BEN. ASS'N et al.
• Court: Kansas Supreme Court

112 P.2d 73

153 Kan. 522

BUGG v. SECURITY BEN. ASS'N et al.

No. 35102.

Supreme Court of Kansas

April 12, 1941

Rehearing Denied June 13, 1941.

Syllabus by the Court.

Where demurrers to petition were all general in character, the Supreme Court on appeal from ruling overruling the demurrers was not required to determine whether specific items of damage alleged by plaintiff were recoverable, since, if any item of damage was recoverable, the demurrers were properly overruled.

Generally a physician or surgeon is not liable for an honest mistake in diagnosis without treatment.

Where physician allegedly made an erroneous diagnosis that growth in patient's breast was a cancer, but physician undertook no treatment of the patient, and patient went to clinic and had her breast removed, and it thereafter allegedly appeared that growth in breast was not cancerous, the physician's diagnosis was not the "proximate cause" of damages sustained by patient's husband in uselessly furnishing medical and hospital expenses in belief that growth was cancerous, since whatever patient did after the diagnosis constituted a "voluntary act" of her own.

In an action to recover damages in the nature of expenses incurred by the husband of a patient as a result of alleged wrongful diagnosis and treatment, the petition examined and Held: No cause of action was stated and the general demurrers of the physician and corporate defendants to the petition should have been sustained.

Appeal from District Court, Shawnee County, Division No. 1; Geo. A Kline, Judge.

Action by Henry R. Bugg against the Security Benefit Association the Security Home and Hospital Association, and Dr. A. C. Schoch to recover moneys allegedly spent by plaintiff by reason of alleged wrongful diagnosis in treatment of plaintiff's wife. Separate demurrers of the defendants to the petition were overruled and from that ruling, defendants appeal.

Action remanded with direction to sustain the demurrers.

WEDELL, SMITH, and HOCH, JJ., dissenting.

Where physician allegedly made an erroneous diagnosis that growth in patient's breast was a cancer, but physician undertook no treatment of the patient, and patient went to clinic and had her breast removed, and it thereafter allegedly appeared that growth in breast was not cancerous, the physician's diagnosis was not the "proximate cause" of damages sustained by patient's husband in uselessly furnishing medical and hospital expenses in belief that growth was cancerous, since whatever patient did after the diagnosis constituted a "voluntary act" of her own.

Clayton E. Kline, M. F. Cosgrove, Balfour S. Jeffrey, Robert E. Russell, all of Topeka, A. W. Fulton, of Chicago, Ill., and Harry L. Ladbury, of Topeka, for appellants.

Thomas Amory Lee, of Topeka, and Kenneth C. Larkey, of Memphis, Tenn., for appellee.

WEDELL Justice.

This was an action by a husband of a member of the Security Benefit Association, and former patient at the Security Benefit Home and Hospital Association, to recover moneys which it was alleged he was required to expend by reason of wrongful diagnosis and treatment of his wife by the corporate defendants and their agent, physician and surgeon, Dr. A. C. Schoch. Separate general demurrers of the corporate defendants and the defendant doctor to the petition of plaintiff were overruled and from that ruling defendants appeal.

The petition contained in substance the following averments: Plaintiff's wife had for sometime been a member of the Security Benefit Association, a fraternal benefit or insurance society, incorporated under the laws of this state with its principal office and hospital located at Topeka. The Security Benefit Home and Hospital Association was a corporate affiliate of the defendant insurance association and functioned and served as an agent and instrumentality of the insurance association. The two corporations functioned and operated as a unit and as an integral part of the same common plan and purpose. The defendant, Dr. A. C. Schoch, was a resident physician and surgeon of the hospital association, a salaried member of the hospital staff and not an independent practitioner.

As a member of the insurance association plaintiff's wife was entitled to the rights and privileges of diagnosis and treatment in the hospital association. On April 4, 1938, his wife entered the hospital conducted by the corporate defendants and placed herself under the care of the individual defendant, Dr. A. C. Schoch, for treatment of a small lump or growth in her left breast and particularly for a diagnosis of the same in order to determine whether it was cancerous. The doctor made an incision into the left breast on April 5th, at a place near the lump, although not in or upon it, and took from it a piece of tissue. The patient remained in the hospital until April 10th, when she returned to her home at Willard, Missouri.

The petition further alleged:

III. "On the 4th day of April, 1938, the wife of the plaintiff entered as a patient the hospital conducted by the two corporate defendants, and placed herself under the care of the defendant, Dr. A. C. Schoch, for treatment of a small lump or growth in her left breast and particularly for a diagnosis of the same to determine if it were cancerous. The defendant, Dr. A. C. Schoch, made an incision into the left breast of the wife of the plaintiff on the 5th day of April at a place near the said lump or growth although not in or upon it, and took therefrom a piece of tissue. The wife of the plaintiff at the time called to Dr. Schoch's attention the fact that the tissue was not taken at the place of the growth and was not a part of the growth. Thereafter, the wife of the plaintiff remained at the hospital until April 10, 1938, when her wound was sufficiently healed for her to go to her home at Willard, Missouri. In the meantime, both she and the plaintiff had anxiously inquired for the diagnosis or the nature of the tissue removed but had received no information. On April 20, 1938, the wife of the plaintiff received a letter from the defendants, dated April 16, 1938, and signed by Dr. Schoch, stating among other things 'my microscope tells me the breast should be removed' but not stating whether the tissue removed was found to be cancerous. Thereupon, the wife of the plaintiff made telegraphic inquiry and was advised that the tissue was cancerous.

IV. "The wife of the plaintiff then went immediately to the Mayo Clinic at Rochester, Minnesota, informed the head of the Mayo Clinic Department of Surgery of the history of the case, including the diagnosis made by the defendants, and, on the strength of the said diagnosis, was immediately operated upon by the said surgeon. Her left breast was entirely removed as well as the lymph glands under her left arm, without further diagnosis. The growth was not a malignant one, the wife of the plaintiff had no cancer, and the diagnosis of the defendant was an incorrect one."

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VI. "The City of Topeka, Kansas, has a population of approximately 70,000, is a thriving, modern city and a medical center where the standards of hospitals and practice of medicine are high and in accordance with the most advanced standards of both, and in which are located several large hospitals, numerous capable physicians, surgeons, pathologists, and diagnosticians whose skill and standards of practice of hospitalization and medicine are approved by the medical profession in the advanced centers of medical science. Under modern standards of medical practice generally approved by the medical profession in and around Topeka and other advanced medical centers, the proper course of treatment for the defendants to have given to the wife of the plaintiff would have been to remove from her breast the entire lump or growth, to have an immediate examination of the said tissue by an expert pathologist and a report upon the same within less than an hour, to permit the wound to heal if noncancerous, and to perform immediately the so-called radical operation and remove the entire left breast and lymph glands under the arm on the left side if found to be cancerous.

VII. "The defendant Schoch did not exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by members of his profession in good standing, did not use ordinary and reasonable care and diligence in his treatment of the case, and did not follow the approved procedure and proper course of treatment generally recognized in and around Topeka in his medical and surgical attentions to the wife of the plaintiff.

"The plaintiff specifically charges that the defendants and each of them unless otherwise noted were negligent in the following particulars:

"(1) The failure of the defendants to employ a trained and skilled pathologist to examine and report upon the tissue taken.

"(2) The failure of the defendants to make any report at all for a period of two weeks upon the tissue taken.

"(3) The failure of the defendants to remove the questionable growth from the breast of the wife of the plaintiff.

"(4) The failure of the defendants to maintain in good repair the apparatus necessary for a diagnosis of this questionable growth.

"(5) The incorrect diagnosis of the tissue by the defendants as cancerous.

"(6) The adoption by the defendants of a method of diagnosis not generally approved by the medical profession in and around Topeka.

"(7) The adoption by the defendants of a method of treatment not generally approved by the medical profession in and around Topeka, and the failure of the defendants to adopt the approved procedure and methods in such cases, to wit: by removing from the breast of the wife of the plaintiff the entire lump or growth;

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