Bush v. Cress
| Decision Date | 05 December 1930 |
| Docket Number | 28,067,28,068 |
| Citation | 233 N.W. 317,181 Minn. 590 |
| Parties | GLADYS AND PETER BUSH v. PETER J. CRESS |
| Court | Minnesota Supreme Court |
Two actions in the district court for Nobles county, one by Gladys Bush to recover damages for malpractice, and the other by her husband to recover for medical expenses incurred and for loss of his wife's services. There was a verdict of $4,000 for the wife and one for $698 in favor of the husband. Defendant appealed from separate orders, Howard, J. denying his alternative motions for judgment or a new trial. Reversed and new trials granted.
Action for malpractice.
In an action to recover damages from a physician for malpractice it is held:
Question for jury whether action was barred.
1. Under the circumstances stated in the opinion the question as to whether the cause of action was barred by the statute of limitation was for the jury.
Without expert testimony no proof of improper diagnosis.
2. In the absence of expert medical testimony, the evidence was insufficient to support a finding that the attending doctor negligently failed properly to diagnose the patient's condition.
Or of causal connection with subsequent operation.
3. The evidence was insufficient to establish the causal connection between defendant's alleged negligence and the necessity for an operation had seven months later.
Physician's negligence to be tested by practice of his own school.
4. A physician's professional acts and the necessity and propriety thereof are to be tested by the evidence of those who are trained and skilled in his particular school of medicine. The mere fact that a physician of one school has studied a single textbook of another school will not qualify him to testify as to the standards of treatment of such other school though the patient's ailment comes within the general field of such textbook.
J A. Cashel, for appellant.
Hansen & Engan, for respondents.
Defendant has appealed from orders denying his motions for judgment non obstante or a new trial in these actions, wherein the plaintiff Gladys Bush seeks to recover damages for malpractice, and her husband, Peter Bush, seeks to recover his alleged expenses in caring for his said wife necessitated by the alleged conduct of the defendant.
On March 9, 1927, defendant, a doctor, was called to attend Mrs Bush in childbirth. She was also suffering with a cold, perhaps a light form of flu. The delivery was difficult. Her health did not permit the use of the usual amount of chloroform. There was some tearing. The doctor performed an episiotomy, which is an incision of the vulvar orifice during parturition. The doctor made an incision in the lower portion of the perineum to the extent of about one and a half inches. This permitted the child to be promptly delivered. He immediately proceeded to sew up the incision. He packed gauze sponges into the vagina to temporarily block the blood, in order to keep the field of operation clean, so that he could see to put in the stitches. When the sewing was completed he removed such sponges as he could remove with his fingers only. He did not think it advisable to probe for other concealed sponges. He acted upon the assumption that the remaining sponges would come with the afterbirth, which the doctor says he then delivered.
One of the sponges remained and was removed by the doctor 6 or 13 days later. Plaintiffs claim the failure to remove this sponge was negligence which resulted in septicemia, necessitating the removal of the left ovary and Fallopian tube. They also claim negligence in the failure of the doctor to make a proper diagnosis of the patient's condition, alleged to have been caused by the sponge.
The sponge was not left in the wound. Defendant says that the presence of the sponge was in no way the cause of the patient's trouble. He and other doctors testify that what he claims to have done was good practice according to the standards of his school of medicine. The defense claims that nature would in a week's time remove the sponge. It was discovered because it was apparently being so delivered.
1. Defendant made professional calls upon the patient several times during the balance of the month of March. She developed a temperature. Dr. Thorson was called on April 1. He examined her. He gave her a douche. He gave her strychnine tablets. He left other medicine which was given. He prescribed douches with warm water and lysol. His instructions were followed. Pursuant to a call from the acting nurse defendant called on April 4. He then examined the patient's womb. He advised that there was no danger of blood poisoning; that flu had settled in the glands; that she should take iron for her blood. He suggested that she would be up in eight or ten days. He also advised the continued use of applications of boiled lysol. He was then informed that Dr. Thorson had been consulted and was presently expected in response to a call. Defendant left. His advice was not followed, but that of Dr. Thorson was. Defendant denied making any examination or giving any advice on April 4. He claims that when he came he was told that Dr. Thorson had been there a few days before and that they were then waiting for him to again call. Defendant says that he consented to Dr. Thorson's taking the case and then left without making any examination or giving or prescribing any treatment.
Actions of this character must be commenced within two years. G.S. 1923, § 9193, as amended, 2 Mason, 1927, id. The statute of limitation does not commence to run until the treatment ends or the employment ceases. Schmitt v. Esser, 178 Minn. 82, 226 N.W. 196; Bush v. Cress, 178 Minn. 482, 227 N.W. 432. This action was commenced on April 3, 1929. If defendant's treatment or employment continued to and included April 4, 1927, the action is not barred. When did the relation of physician and patient end? It may be that two doctors were desired. On April 4 defendant made the examination mentioned, that is, the jury could find that he did. He must have then considered that he was acting professionally. So also when he advised as to the condition on that day and the medicine to be taken. He came on April 4 in response to a call. It can hardly be supposed that he was asked to come some distance into the country to be informed that his services were no longer desired.
We are of the opinion that the evidence presented a controversial question of fact and that the court properly submitted the question to the jury. The evidence is sufficient to support the finding that the relation of physician and patient existed on April 4.
2. During the period that defendant attended the patient she at times had a high temperature. The doctor prescribed different medicines and treatment. He attributed the unfavorable conditions to the presence of the patient's cold or flu. Plaintiffs claim that the condition was attributable to puerperal infection caused by the failure to remove the sponge. The claim is that defendant was negligent in so failing to recognize and diagnose the patient's condition. This claim has no support from medical expert witnesses. It rests entirely upon the theory that laymen may draw an inference to that effect. Yet the doctor's duty in this respect necessarily involves judgment. Staloch v Holm, 100 Minn. 276, 111 N.W. 264, 9 L.R.A.(N.S.) 712. In any event no liability can be impressed upon defendant on this theory, because his negligence must be established by competent witnesses who are qualified to speak in relation to such an important and delicate subject. The evidence in this record is insufficient to permit the jury to say that defendant was negligent in failing to make a seasonable and proper diagnosis of...
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