Butler v. Rule

• Decision Date: 07 January 1926
• Docket Number: Civil 2422
• Citation: 242 P. 436,29 Ariz. 405
• Parties: JOEL I. BUTLER, Appellant, v. LUCY V. RULE, Administratrix of the Estate of LUCILLE HOLLOWAY, Deceased, Appellee
• Court: Arizona Supreme Court

242 P. 436

29 Ariz. 405

JOEL I. BUTLER, Appellant, v. LUCY V. RULE, Administratrix of the Estate of LUCILLE HOLLOWAY, Deceased, Appellee

Civil No. 2422

Supreme Court of Arizona

January 7, 1926

APPEAL from a judgment of the Superior Court of the County of Pima. W. R. Chambers, Judge. Judgment reversed and cause remanded with the direction that defendant be granted a new trial.

Messrs Curley & Pattee, for Appellant.

Messrs Richey & Richey and Mr. Elwood B. Frawley, for Appellee.

OPINION

ROSS, J.

The plaintiff, claiming that her intestate came to her death by reason of a negligent and unskillful X-ray treatment administered by defendant, brought this action for damages. In her complaint she relied upon five grounds of negligence, as follows:

"(1) That defendant administered said treatment to decedent without first determining decedent's susceptibility thereto, by reason of which said treatment was too strong and too severe;

"(2) That the tube and bulb of said machine was placed too close to decedent's body;

"(3) That proper covering and protection was not given decedent's abdomen, groins, thighs, and legs;

"(4) That said rays were too intense and too severe; and

"(5) That defendant failed to properly supervise said treatment, and remained absent therefrom for a period of more than one-half hour, leaving with decedent only her minor daughter, who was, as defendant then knew, or should have known, unskilled and without knowledge of X-ray machines and treatment, whereby said treatment was of too long duration."

The defendant's answer set out that plaintiff's intestate was affected with sarcoma in the left groin, of such advanced state as, after consultation with two other physicians, it was concluded inadvisable to operate thereon but proper and necessary to treat by X-ray in an effort to retard its growth, and, if possible, destroy such growth; "that, acting upon such determination, and at the request of said decedent, defendant did administer one treatment to decedent with an X-ray mahcine; that such treatment was administered with due and proper care and skill, and in no greater dosage than was necessary in order to properly treat decedent, and to reach and affect the growth with which she was then suffering."

A jury trial resulted in a verdict and judgment for $1,000. Defendant moved for a new trial, which was denied. He appeals from the judgment, and assigns a great number of errors.

It is very earnestly contended by defendant that his motion for a directed verdict should have been granted, for two reasons: First, because there was introduced no evidence showing that he was careless or unskillful in giving deceased the X-ray treatment; and, second, there was not shown any causal connection between the treatment and the death of intestate. The motion was denied, and the court, in submitting the case to the jury, did so on the assumption that there was evidence tending to support all the charges of negligence except the first one. This one was expressly withdrawn from the jury, and they were told that, if they found any of the other charges was established by a preponderance of the evidence, plaintiff should recover. The nature of the question makes it necessary to state at some length the facts as developed by the evidence, and then point out as best we can their bearing upon the allegations of the complaint.

On March 19, 1923, plaintiff's intestate called on the defendant for his professional service and advice. It seems that she had been examined theretofore by Drs. C. A. Peterson and Victor M. Gore, who had diagnosed her ailment as sarcoma. Under the instructions of these doctors, the intestate went to defendant, an X-ray operator and physician with offices in same building. There is no dispute but that she was afflicted with sarcoma, a most virulent and malignant type of cancer, and that it was at the time of about twelve months' growth. It was determined that the time for a surgical operation was past, and that, if intestate had any chance, it was from the X-ray treatment. The latter treatment was thereupon administered by Dr. Butler.

At the time of the treatment, the deceased was thirty-six years old. She was in general good health. She had been able until then to do her housework, including the washing, ironing and scrubbing of floors, and could walk and exercise physically without appearing tired or exhausted, and had no physical ailments outside of the swelling in her groin. She had washed and scrubbed on the day of the operation. The growth had not bothered her except when it came in contact with something, and then it would hurt her and make her sick.

After the operation she was unable to do what she had formerly done. She was in intense pain all the time, both night and day. During the treatment she complained of burning pains in her stomach and of sickness of the stomach, and that night she suffered so much pain that Dr. Peterson was called. The next morning her stomach was swollen, and the part of her body exposed to the X-ray was red, and in two or three days blisters began to form and then break. The surface that had been exposed to the rays began to slough off so that the center of the wound became deeper and deeper. The edges healed some. Her leg and foot swelled so large that blisters formed thereon. The swelling in her stomach did not abate, and she complained most of the time of pains in her stomach. She had received what is known as a "third-degree burn." The first two months after the operation she would lie down at night, but did not sleep well; she was up and down night and day. Thereafter she never went to bed, but sat in a rocking-chair with her feet on the side of her bed. The last three months before she died she was not able to eat anything except milk, eggnog and things like that. For a month and a half before she died her face was paralyzed. She died on August 23, 1923, less than five months after the treatment.

It is the contention of the plaintiff that her intestate's death was caused or hastened by the treatment, and that such treatment was negligently and unskillfully administered.

The defendant's contention is that intestate's death resulted from the cancer solely.

The plaintiff, as part of her case, called Dr. Butler for cross-examination and had him explain how the X-ray treatment was administered. His statement was, in effect, as follows: The patient was placed on the X-ray operating table. The place to be treated was bared, and the parts of the body not to be exposed to the X-ray were protected by a cover of lead-impregnated rubber. The aperture was a parallelogram and of sufficient size to expose the large growth and leave a margin for the smaller growths. The X-ray tube was of the Coolidge type; it was a standard tube. The voltage used was between eighty-five and ninety-five thousand volts. The tube was adjusted to "moderately hard." The target or focal point of tube was placed fifteen inches from the skin or surface of growth. The strength of the current applied was five milliamperes. The filters used were leather and aluminum, and were standard for a fifteen-inch distance between the focal point of the tube and the skin. The treatment lasted thirty minutes.

The only expert testimony upon the question as to whether the above-described treatment was proper or not was that of the defendant, Dr. Butler, and Dr. R. J. Callander. Dr. Butler said the treatment he gave, and as outlined, was a proper one; and Dr. Callander, testifying as an X-ray expert, said such treatment was proper. He added he would expect such a treatment to produce erythema, or a flush of the skin, but no more.

According to these experts, defendant was not guilty of negligence or want of skill. In giving the treatment, he had exercised the care and skill usual among physicians and surgeons in good standing under similar circumstances -- the standard to judge him by in the use of the X-ray as a remedial agent. If the operation was performed as detailed by defendant, he fully met his legal obligation to his patient (Henslin v. Wheaton, 91 Minn. 219, 103 Am. St. Rep. 504, 1 Ann. Cas. 19, 64 L.R.A. 126, 97 N.W. 882), and every charge of negligence or lack of skill was refuted.

However, if there was evidence as to the manner in which defendant administered the treatment in conflict with his testimony, and tending to show that in some essential the treatment was not given as defendant stated, the expert testimony to that extent would fail, and a question of fact for the jury arise. The value of an answer to a hypothetical question may be destroyed, if the facts or some of the facts upon which it is based are not conceded or proved as a part of the case. While defendant stated the distance from the target to the skin by measurement to be fifteen inches, witness Margaret Robson, who was the only person present aside from the defendant during the treatment, testified that such distance was from ten to twelve inches. It is argued by defendant that this testimony does not create a conflict, because defendant's figures were the measured distance, whereas Robson was only estimating the inches between the given points. Defendant's words were:

"In setting my apparatus and taking my spark distance at fifteen inches, I measured as closely as possible to the estimated the center of the growth, so that the distance from the target to the skin was fifteen inches, and used the current which I estimated would have its greatest effect in the center of the growth. I measured to the highest part nearest the target. The skin distance from the top of the cancerous condition to the target was fifteen inches. That was a proper treatment; I should do the same thing again if the same conditions presented...