Casenburg v. Lewis

• Decision Date: 20 July 1931
• Citation: 40 S.W.2d 1038,163 Tenn. 163
• Parties: CASENBURG v. LEWIS.
• Court: Tennessee Supreme Court

40 S.W.2d 1038

163 Tenn. 163

CASENBURG v. LEWIS.

Supreme Court of Tennessee.

July 20, 1931

Certiorari to Court of Appeals, on Error to Circuit Court, Knox County A. C. Grimm, Judge.

Action by B. I. Lewis, administrator of the estate of Mrs. Lucy Lewis, against S. F. Casenburg. Judgment for plaintiff was reversed by the Court of Appeals, and plaintiff brings certiorari.

Judgment of Circuit Court affirmed conditionally.

Lee Price, McDermott & Meek, of Knoxville, for plaintiff in error.

Kramer & Kramer, of Maryville, for defendant in error.

COOK J.

The parties are referred to as in the trial court. This action is grounded upon the complaint that plaintiff's intestate Mrs. Lucy Lewis, was negligently injured by a third degree burn through treatment administered by the defendant May 5, 1924. At a former trial the circuit judge directed a verdict for the defendant. In Lewis v. Casenburg, 157 Tenn. 187, 7 S.W.2d 808, 60 A. L. R. 254, this court concurred with the Court of Appeals in holding that, under the doctrine of res ipsa loquitur, there was sufficient evidence to carry the case to the jury, and the cause was remanded for another trial.

A second trial resulted in a verdict and judgment for the plaintiff. Upon review, the Court of Appeals held that the motion for peremptory instructions should have been sustained in the trial court, and for that error reversed the trial judge. The cause is here for review upon certiorari to the Court of Appeals.

The material facts presented by the record are that early in 1918 Dr. Boies, assisted by Dr. McCreary, operated on Mrs. Lewis for abdominal tumor. After the incision they found it inadvisable to remove the growth. Dr. Boies says because it was malignant. Dr. McCreary says because of adhesions to vital organs. The opening was closed, and when it healed Mrs. Lewis was sent to Dr. Casenburg for X-ray treatment. By this treatment the growth was reduced, and use of the X-ray was discontinued until 1920. Its use was again resumed and the growth subsided, but treatments continued intermittently until May, 1924. From the first treatment in 1918 to some time prior to May 5, 1924, Dr. Casenburg gave Mrs. Lewis one hundred and sixty X-ray treatments.

Dr. Casenburg and Miss Burnett, his technician, testified that dosage of the same quantity, quality, and intensity was applied each time to the back and the abdomen. No injury developed from any of the one hundred and sixty treatments. May 5, 1924, the X-ray was again applied in equal dosage to the abdomen and back, and resulted in a third degree burn of the abdomen. The burnt space was about seven inches in diameter, or, as described by some of the witnesses, it covered a space seven by nine inches, and extended in depth to the underlying abdominal membrane. According to the testimony, the tissues were destroyed throughout to the abdominal membrane.

Mrs. Lewis commenced the action, but died January 14, 1926. Dr. Lott gives as the immediate cause of her death appendicitis, superinduced by the X-ray burn that made it impossible to relieve her by an operation, because the opening would have extended through the burnt tissue without possibility of healing.

As stated in the former opinion, the doctrine of res ipsa loquitur is applicable if the instrument that produced the injury was under exclusive control of the defendant, and injury would not ordinarily result if due care was exercised. Applying the rule, it is said the fact of injury makes out a prima facie case of negligence, and in the absence of countervailing explanatory proof to overcome the prima facie case liability would follow. It is said that the inference of negligence arises under the doctrine of res ipsa loquitur, and the prima facie case thereby established becomes conclusive unless rebutted by opposing evidence. When rebutted by opposing evidence, the weight of the inference as well as the weight of the explanation is for the determination of the jury, unless uncontradicted explanatory evidence excludes the inference that injury resulted from want of ordinary care.

At the first trial, as indicated by the published opinion, the defendant emphasized individual idiosyncrasy or the supersensitiveness of Mrs. Lewis to influence of the X-ray as the primary cause of her injury. At this trial idiosyncrasy, superinduced by the cumulative effect of past treatments, was presented as a theory of the defense, with the explanation that the cumulative effect of the treatments resulting in the third degree burn could not have been foreseen.

Another explanation or theory of the defense was that the negligent use of scarlet red on the itching surface of the abdomen converted a first degree burn into a third degree burn.

Dr. Hedge, whose testimony is referred to in the published opinion, testified on the second trial as in the first, that third degree burns are unusual, and in this trial testified that they result from one of the following causes:

First. An excessive dosage, caused by failure of the X-ray operator to use proper filter-age, or result from excessive exposure, or increased intensity of the ray.

Second. Idiosyncrasy, that is, a peculiar susceptibility of the patient to influence of the X-ray.

Third. Failure of the operator to observe the patient so as to determine whether the cumulative effects of preceding treatments have approached the danger point.

Dr. Casenburg and other witnesses testified that the X-ray apparatus used in the treatment was that in common use by other physicians, that it was properly used and the ray applied properly in respect to both time and intensity, both on the occasion of May 5, 1924, and all preceding occasions, and Dr. Casenburg testified that the injurious effect of the last treatment of Mrs. Lewis by X-ray was unavoidable.

The Court of Appeals concluded that defendant was confronted with...