Burris v. Titzell, No. 32674.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGAYNOR
Citation189 Iowa 1322,177 N.W. 557
PartiesBURRIS v. TITZELL.
Decision Date15 May 1920
Docket NumberNo. 32674.

189 Iowa 1322
177 N.W. 557

BURRIS
v.
TITZELL.

No. 32674.a1

Supreme Court of Iowa.

May 15, 1920.


Appeal from District Court, Johnson County; R. G. Popham, Judge.

Action to recover damages for malpractice. Opinion states the facts. Judgment and verdict for the plaintiff. Defendant appeals. Reversed.

[177 N.W. 558]

Dutcher, Davis & Hambrecht, of Iowa City, for appellant.

W. J. McDonald, of Iowa City, and Cook & Balluff, of Davenport, for appellee.


GAYNOR, J.

This action is to recover damages for alleged malpractice. The plaintiff divides his petition into two counts. In each count he undertakes to set out a distinct cause of action upon which he predicates a right to damages.

The first count centers around the escape of a drainage tube into the pleural cavity of the plaintiff on the 6th day of March, 1915. It is the claim of the plaintiff that the defendant was negligent in permitting the drainage tube to escape into the said cavity, and the second count centers around an operation performed in an attempt to remove the tube. Before stating the grounds upon which plaintiff predicates his right to recover, we may properly state some of the facts which led up to and made it necessary that the plaintiff be operated upon at all. It appears that on and prior to the 6th day of January, 1915, plaintiff was a resident of Cherokee county, and while there was taken sick with pleurisy and pneumonia some time in January, 1915, was treated by a local doctor for these troubles until the 20th day of February, 1915, when he was brought to the Homeopathic Hospital at Iowa City. The local doctor testifies that before he was taken to Iowa City, he performed a surgical operation on the plaintiff with an aspirating needle. The purpose was to relieve the pus in the pleural cavity. He testified:

“I secured one quart of pus from the pleural cavity. This operation was performed on the 19th day of February. The ailment with which plaintiff was suffering was a serious disease. It is difficult to treat, and more so with a history of alcohol, booze, back of it, it is very hard. After I found out there was pus in this cavity and it would be a long protracted case, I concluded to send the plaintiff to Iowa City.”

And he was accordingly taken there on the date aforesaid. The plaintiff was brought to this hospital by one of the trustees of the township in Cherokee, in which he resided, as a county patient. The defendant occupied the chair of surgery in the State University, and plaintiff was turned over to him for treatment. The defendant's connection with this Homeopathic Medical College at Iowa City consisted of teaching and also doing general surgery such as was found necessary in the hospital. We take it he was employed by the state at a fixed salary, and received no compensation for the treatment given patients in the hospital other than he received from the state. The nurses and medical staff of this hospital were employed by the board of education of the state, and were subject to discharge by them. The defendant's relationship to the hospital gave him no authority to employ or discharge internes or nurses. The nurses were assigned to take care of patients operated upon. The defendant attended the plaintiff for the first time on February 22, 1915, or at least that is the first time he saw him. He diagnosed his case and found him suffering from empyema, found him in a badly run-down condition as a result of his previous illness. On the 24th the doctor inserted a needle in the chest of plaintiff for the purpose of ascertaining whether he had pus or just an ordinary effusion. He found pus in the cavity, and that it was necessary to remove it in order to effect a cure. Thereupon the doctor made an incision about two inches long into the cavity between the seventh and eighth rib, and inserted a tube for the purpose of draining the pus from the cavity. The tube, after being

[177 N.W. 559]

inserted, was fastened in the body of the patient by suture; that is, a needle threaded with silkworm gut was passed through the skin and through the tube, and then out through the skin on the other side and tied. All doctors agree that this was one of the usual and approved methods of inserting and fastening such a tube at the time the operation was performed. Thereafter the doctor saw the patient twice a day. In the meantime it was the practice of the hospital and the duty of the nurses and internes to dress the wound, and this was done. On the 6th day of March it was discovered by one of the nurses that the tube had disappeared. A search was made for it in the bed and clothing and in the dressing that had been removed from the wound, and it could not be found.

On the 22d day of June following it seemed that the wound had closed so there was not sufficient drainage, and plaintiff's temperature was rising. An effort was made then to enlarge the opening for better drainage, and an attempt made to administer an anæsthetic, but the patient was unable to take the anæsthetic, his heart stopped, he quit breathing, and the attendant had to use artificial respiration to bring him back, and further operation was suspended; at least the defendant so claimed.

The escape of the tube from its moorings into the pleural cavity and the consequences that followed its presence there serve as a basis for the cause of action alleged by the plaintiff in the first count of his petition. In stating his cause of action in this count he says:

“The defendant, in placing or inserting said drainage tube, undertook to secure the same, so as to prevent it from slipping or sliding into the cavity, by making a stitch with a needle, which the plaintiff believes to have been a silk thread through said tube and the flesh or skin of the plaintiff; that the defendant, not regarding his duty to the plaintiff, so carelessly, negligently, and unskillfully placed the tube in plaintiff's person, and so negligently failed to properly and safely secure it against slipping, falling, or working into the pleural cavity that the tube did escape or work loose from the insecure fastenings and did slip or work into the person of plaintiff and into the pleural cavity, and remained there until the same was removed on the 1st day of January, 1916.”

The negligence upon which plaintiff predicates his right to recover in this count is stated in these words:

“(1) That the defendant failed and neglected to use reasonable and proper means of securing said drainage tube to the person of plaintiff, or otherwise, so as to prevent same from slipping or working into the cavity in which it was inserted for drainage purposes.

(2) That he failed to secure or fasten the tube to prevent it from slipping or working into the cavity.

(3) That, knowing the tendency of the tube to slip or work into the cavity, he failed and neglected to take any means whatsoever to prevent the same from working or slipping into the cavity.

(4) That he failed to use any of the means known to the profession generally to prevent the tube from slipping or working into the cavity.”

He alleges that by reason of this negligence the tube slipped or worked into the cavity, producing injurious consequences, both in health and loss of time, etc., and expenses incurred. On the allegations of this count he claims $15,000.

The second count of the petition is predicated on the alleged negligence of the defendant in attempting to remove the tube from plaintiff's person on the 1st day of January, 1916, and it is alleged that on that day defendant, for the purpose of recovering or removing the tube, performed a surgical operation upon the plaintiff. The negligence charged in this operation is:

(1) That the defendant negligently and carelessly failed to locate, by means of an X-ray, or otherwise, the exact and precise location of the tube in the person of the plaintiff before attempting the operation.

(2) That the defendant, knowing or having means of knowing the location of said drainage tube in the person of the plaintiff, proceeded to operate upon the plaintiff without locating or having located the said tube in the person of the plaintiff.

(3) That the defendant was negligent in making a cut or incision in the plaintiff's back and through the nerves, muscles, and flesh of his back, when he knew or should have known by the exercise of reasonable care the extent and size of the cavity into which the aforesaid drainage tube had escaped, and was then located, and was negligent in not ascertaining and knowing that the cavity did not extend around plaintiff's right side and into his back; that defendant was negligent in making a cut or incision into plaintiff's back and in severing the nerves, muscles, and cords leading to his right arm, which are involved in the motion of his right arm, when he knew, or should have known, that the drainage tube which he was seeking to recover was located at or about and under the right nipple, and that the cavity did not extend into the right side or back of the plaintiff beyond a point drawn directly downward from the shoulder blade of the plaintiff on the right side; that in the operation the defendant did not locate the drainage tube.

For the consequences that flowed from this alleged negligence the plaintiff claims $30,000 damages.

It will be noticed that the plaintiff claims to recover for two distinct acts of negligence, one occurring in February, 1915, and the other January 1, 1916. Each act complained of as negligence serves in the pleading as a

[177 N.W. 560]

basis for a separate cause of action, and the right to recover on either cause of action rests upon the proof offered to establish it. The court submitted...

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8 practice notes
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • 6 Marzo 1928
    ...on proximate “negligence,” both “pleaded” and proved. Borland v. Lenz, 196 Iowa, 1148, 194 N. W. 215;Burris v. Titzell, 189 Iowa, 1322, 177 N. W. 557;179 N. W. 851; on the other hand, “res ipsa loquitur” is not a rule of “pleading,” but rather an inference aiding in the “proof.” With those ......
  • Corn v. French, No. 3809
    • United States
    • Nevada Supreme Court of Nevada
    • 27 Octubre 1955
    ...conditions expert testimony was considered unnecessary. See annotation 141 A.L.R. 5. As observed by the court in Burris v. Titzell, 189 Iowa 1322, 177 N.W. 557, 562, 179 N.W. 851; '[C]ases do arise where common knowledge of physical facts and of the natural laws that govern physical life ar......
  • Stickleman v. Synhorst, No. 48012
    • United States
    • United States State Supreme Court of Iowa
    • 1 Abril 1952
    ...172 Iowa 653, 660, 154 N.W. 923, 11 N.C.C.A. 728; Kopecky v. Hasek Bros., 180 Iowa 45, 49, 50, 162 N.W. 828, 830; Burris v. Titzell, 189 Iowa 1322, 1335-6, 177 N.W. 557, 179 N.W. 851; Whetstine v. Moravec, 228 Iowa 352, 370-373, 291 N.W. 425; Anno. 141 A.L.R. 5, 12, This from Evans v. Rober......
  • Meeker v. City of Clinton, No. 59113
    • United States
    • United States State Supreme Court of Iowa
    • 23 Noviembre 1977
    ...claim it was evidence of similar acts. We have allowed evidence of similar acts many times in Iowa. See for example, Burris v. Titzell, 189 Iowa 1322, 1336-1337, 177 N.W. 557, 563, mod. on reh. 189 Iowa 1322, 179 N.W. 851; Nelson v. Langstrom, 252 Iowa 965, 970, 108 N.W.2d 58, 61; Davis v. ......
  • Request a trial to view additional results
8 cases
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • 6 Marzo 1928
    ...on proximate “negligence,” both “pleaded” and proved. Borland v. Lenz, 196 Iowa, 1148, 194 N. W. 215;Burris v. Titzell, 189 Iowa, 1322, 177 N. W. 557;179 N. W. 851; on the other hand, “res ipsa loquitur” is not a rule of “pleading,” but rather an inference aiding in the “proof.” With those ......
  • Corn v. French, No. 3809
    • United States
    • Nevada Supreme Court of Nevada
    • 27 Octubre 1955
    ...conditions expert testimony was considered unnecessary. See annotation 141 A.L.R. 5. As observed by the court in Burris v. Titzell, 189 Iowa 1322, 177 N.W. 557, 562, 179 N.W. 851; '[C]ases do arise where common knowledge of physical facts and of the natural laws that govern physical life ar......
  • Stickleman v. Synhorst, No. 48012
    • United States
    • United States State Supreme Court of Iowa
    • 1 Abril 1952
    ...172 Iowa 653, 660, 154 N.W. 923, 11 N.C.C.A. 728; Kopecky v. Hasek Bros., 180 Iowa 45, 49, 50, 162 N.W. 828, 830; Burris v. Titzell, 189 Iowa 1322, 1335-6, 177 N.W. 557, 179 N.W. 851; Whetstine v. Moravec, 228 Iowa 352, 370-373, 291 N.W. 425; Anno. 141 A.L.R. 5, 12, This from Evans v. Rober......
  • Meeker v. City of Clinton, No. 59113
    • United States
    • United States State Supreme Court of Iowa
    • 23 Noviembre 1977
    ...claim it was evidence of similar acts. We have allowed evidence of similar acts many times in Iowa. See for example, Burris v. Titzell, 189 Iowa 1322, 1336-1337, 177 N.W. 557, 563, mod. on reh. 189 Iowa 1322, 179 N.W. 851; Nelson v. Langstrom, 252 Iowa 965, 970, 108 N.W.2d 58, 61; Davis v. ......
  • Request a trial to view additional results

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