Cappuci v. Barone

• Decision Date: 28 March 1929
• Citation: Cappuci v. Barone , 266 Mass. 578, 165 N.E. 653 (Mass. 1929)
• Parties: CAPPUCI v. BARONE (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 578

165 N.E. 653

CAPPUCI

v.BARONE (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1929.

Exceptions from Superior Court, Suffolk County; Elias B. Bishop, Judge.

Actions by Pascua Cappuci and by Ameto Cappuci against Joseph Barone.The judge found for defendant, and plaintiffs bring exceptions.Exceptions overruled.J. T. Pugh and C. E. Leonardi, both of Boston, for plaintiffs.

M. J. Mulkern, of Boston, for defendant.

PIERCE, J.

These two actions of tort were begun by writs dated September 28, 1926, and entered in the superior court on the first Monday of November, 1926.The first is to recover damages for the alleged negligence of the defendant in performing an abdominal surgical operation.The second is by the husband of the plaintiff in the first action to recover consequential damages.The defendant's answer in each case is a general denial, contributory negligence, assumption of risk, and the statute of limitations.The cases were tried together.The plaintiff in the first action will be hereinafter referred to as the plaintiff.

At the close of the plaintiffs' evidence the defendant rested in each case and presented a motion, in writing, requesting the judge to rule that upon the evidence and the pleadings the plaintiff was not entitled to recover, and to make a finding in each case for the defendant.The judge thereafter found for the defendant, and the plaintiffs duly excepted.

The bill of exceptions purports to contain ‘all the testimony material to the questions of law herein raised,’ and states that ‘the pleadings and the specifications may be referred to.’The plaintiff testified, in substance, that on May 11, 1924, she sent for the defendant; that his brother came and examined her; that in consequence of this examination she went to the Forest Hills Hospital, in Boston; that when she arrived at the hospital she saw a nurse, and about one-half hour afterward the defendant came in and she was examined by him while she was in bed; that the defendant said to her, ‘You need an operation,’ and about an hour and a half later she was taken to the operating room, where she saw the defendant, who told her he was going to operate on her; that just before she went under ether the defendant examined her, and told the nurses to prepare her for the operation room; that in the operation room were the defendant, his brother, a doctor who administered the ether, and a nurse.

She further testified, in substance, that what was done during the operation she did not know.The next thing she knew she was in bed in another room and the nurses took care of her, and in about two weeks she was able to go home.The defendant was the only doctor who talked with her or visited her from the time of her arrival at the hospital.After she came out of the ether the defendant visited her, dressed her wound, which was in the middle of the abdomen, and came every morning for two weeks, when he and a nurse took the stitches out, the defendant saying, ‘I made a good wound there.’She remained in the hospital three days more and then went home and stayed in bed two weeks.After she got out of bed at home she felt pain every day.About a month after she got up she went to see the defendant and told him she was having pain, and he prescribed treatment for it, saying, ‘It will take a year before those pains disappear.’He treated her two or three times at his office.She was having pain every day, and about six or seven months after the operation she went to see another doctor.She saw three doctors, had an X-ray of her abdomen, and was operated upon at the Vincent Memorial Hospital in Boston.The surgeon who operated on the plaintiff, on or about July 1, 1926, testified in substance that ‘where the incision for the operation by the defendant was made * * * he found an inflammatory mass of small intestine, which he dissected out, and inside the mass he found a piece of gauze, a gauze sponge such as surgeons use in an operation.’

The controlling facts of Guell v. Tenney, 262 Mass. 54, 159 N. E. 451, distinguish that...