Butler v. Layton

• Decision Date: 01 February 1929
• Citation: 266 Mass. 117,164 N.E. 920
• Parties: BUTLER v. LAYTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 117

164 N.E. 920

BUTLER

v.LAYTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 1, 1929.

Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Action by Anna Butler against Roy W. Layton. On defendant's bill of exceptions from refusal to direct verdict. Exceptions overruled.

M. C. Kelleher, of Boston, for plaintiff.

R. Homans and L. E. Keeley, both of Boston, for defendant.

CROSBY, J.

This is an action for damages caused by the alleged negligence of the defendant, a physician and surgeon, in failing to exercise proper professional skill. It is the contention of the plaintiff that she became afflicted with bronchitis as the result of the administration of ether to her when she had a severe cold. The ether was administered in the course of an operation performed by the defendant on June 22, 1925, for the removal of the plaintiff's tonsils. The jury could have found that at the time the ether was administered the plaintiff had a severe cold and that she informed the defendant to that effect before the operation was performed. There was also evidence tending to show that except in case of emergency it was improper medical practice to administer ether to a patient who was suffering from a severe cold.

The defendant states in his brief that he does not contend that ‘there was not evidence for the jury to consider on the question of whether the defendant had failed to exercise reasonable professional skill in giving ether to the plaintiff. What the defendant does now contend, and what is the foundation of the only exception in the case * * * is that a verdict should have been directed for the defendant on the ground that assuming the defendant failed to exercise reasonable professional skill, there was no evidence that such failure was the cause, in whole or in part, of the plaintiff's succumbing to acute bronchitis.’

The plaintiff testified that she went home from the hospital the day after the operation; that her throat was very painful; that the first thing she noticed, apart from where her tonsils had been removed, was that, about two weeks after she left the hospital, she started coughing and sneezing, as soon as she was able to cough on account of her throat which was very hard, and had a feeling of conjestion in the chest which she had not noticed before she began to cough; that she called the defendant on the telephone and told him of her condition; that he said he could not see her as he was operating; that he advised her to go to New Hampshire; that she went there and returned in two weeks, and saw the defendant about the middle of July, 1925; at that time he advised various remedies, and at a later date told her ‘the cold was beyond him.’

The plaintiff's family physician, testified that he had been associated with the Boston Dispensary Lung Department, with the Boston Association for the Relief and Control of Tuberculosis, and with the Boston Sanatorium, where cases of lung and bronchial infection are treated; that he was at the time of the trial associated with the board of health, division of tuberculosis, and an instructor in pulmonary diseases at Tufts College; that he had etherized many hundreds of patients and had attended operations where ether was administered by others; that the effect of etherization of a person having a head cold would be ‘an extension of the process downward’; that by process he meant infection and a head cold would be an infectious process in the head; that the effect of ether on a person who had a head cold would be a carrying of the inflammation downward; that the inflammation increases the secretion and that increases the amount of infection ‘reducing the amount of air coming in and out’ which would cause bronchitis. This witness further testified that when ill consequences follow the administration of ether the results are pneumonia and bronchitis, the...