Capps v. Valk

• Decision Date: 03 March 1962
• Docket Number: No. 42453,42453
• Citation: 369 P.2d 238,189 Kan. 287
• Parties: Cecile CAPPS, Appellant, v. William L. VALK, Appellee.
• Court: Kansas Supreme Court

Page 238

369 P.2d 238

189 Kan. 287

Cecile CAPPS, Appellant, v. William L. VALK, Appellee.

No. 42453.

Supreme Court of Kansas.

March 3, 1962.

Rehearing Denied April 11, 1962.

Syllabus by the Court

The record in an action to recover damages for malpractice in failing to remove a drain tube placed in the plaintiff's body following surgery, is examined, and, as more full set forth in the opinion, it is held: The district court erred in sustaining the defendant's demurrer to the plaintiff's evidence and in entering judgment for the defendant.

Harold E. Gregg, Topeka, argued the cause, and Walter Fuller, Jr., Kansas City, was with him on the briefs, for appellant.

John J. Alder, Kansas City, argued the cause, and H. S. Roberts, Kansas City, was with him on the briefs, for appellee.

FATZER, Justice.

This was an action to recover damages for malpractice in leaving an eight-inch drain tube in the body of the plaintiff. The case was here previously, Capps v. Valk, 184 Kan. 796, 339 P.2d 62, and it was held plaintiff's second amended petition alleged a cause of action against the defendant. Trial was had upon the issues by a jury, and at the close of the plaintiff's case the district court sustained defendant's demurrer to the plaintiff's evidence and entered judgment for the defendant. Thereafter the plaintiff filed a motion for a new trial, which was overruled, and this appeal followed.

The evidence is summarized and quoted: Plaintiff, Cecile Capps, is married and resides with her husband in Independence, Kansas. She had pain in the region of her left kidney and had been running a temperature over a period of several days. She consulted Dr. R. G. Carter, of Independence, their family physician. Dr. Carter advised her to have an X-ray of that area as he thought it was probable a stone was located some place in the kidney or ureter. X-rays were taken, later sent to the defendant, which disclosed a stone in the left ureter. Dr. Carter advised the plaintiff her condition necessitated special treatment and he recommended the defendant, Dr. William L. Valk, who was a specialist in urology and also head of the section of urology at the University of Kansas Medical Center in Kansas City, Kansas. Dr. Carter was well acquainted with Dr. Valk and knew of his specialized professional ability, and had previously referred patients to him. Dr. Carter called Dr. Valk at the Medical Center concerning the plaintiff's condition and told him he was referring her to him for treatment. Dr. Carter advised the plaintiff to go to the Medical Center where she would be treated personally by the defendant.

Plaintiff entered the University of Kansas Medical Center on November 29, 1955, as a 'private patient' under the care of the defendant who was her private physician and surgeon. A 'private patient' is one who goes to the Medical Center to receive the specialized care and treatment of a particular physician and surgeon as his private patient and who pays him for his professional services which he personally retains. In addition, the private patient pays to the state of Kansas the usual costs of hospitalization.

The defendant examined the plaintiff and the x-rays forwarded to him by Dr. Carter, and he knew she had a stone in the lower end of the left ureter, the tube which connects the kidney to the bladder. At that time he also knew her kidney was badly diseased and that the stone was completely blocking the passage.

On December 6, 1955, the defendant operated on the plaintiff and removed the heavily impacted stone. After the stone was removed, the defendant placed a rubber tube approximately an inch in diameter and ten inches long in the opening to drain the area. About two inches of the tube extended beyond the skin surface. It is a standard practice to put such a tube in such an opening. The defendant gave instructions to the resident physician, Dr. Woodard, to remove the tube on the tenth post-operative day. On that day Dr. Woodard removed the stitches and clipped the tube off even with the skin surface, but the tube was never removed at the hospital.

During the time the plaintiff was in the hospital she was visited and attended by numerous interns, residents and other doctors, and the defendant visited her daily and checked her chart to see whether her temperature, pulse and respiration were normal which indicated to him the course of her recovery.

The plaintiff was discharged on December 21, 1955, and in response to a question whether he checked to see if the tube was removed the defendant stated, 'I looked at her incision before she went home and it looked satisfactory to me, so I discharged her.'

After the plaintiff returned to her home the incision continued to drain from about a half-inch opening and she was required to change the dressings day and night. Plaintiff was in pain most of the time and was unable to do her housework; she was unable to sleep, and her side felt like a 'bee stinging in there,' and she knew 'something...