Chesley v. Durant

• Decision Date: 29 November 1922
• Citation: 137 N.E. 301,243 Mass. 180
• Parties: CHESLEY v. DURANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 180

137 N.E. 301

CHESLEY

v.DURANT.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 29, 1922.

Exceptions from Superior Court, Essex County; Phillip J. O'Connell, Judge.

Action by Georgianna Chesley against Charles E. Durant for alleged malpractice of defendant, a physician and surgeon, in caring for and treating plaintiff after an operation. Verdict for plaintiff for $1,500, and defendant brings exceptions. Exceptions overruled.

The case was tried with another case by the same plaintiff against E. Philip Laskey for negligence in treatment after such operation. The jury found for Laskey and against Durant. Defendant, Durant, moved for a directed verdict on the ground that on all the evidence plaintiff could not recover and excepted to the denial of such motion. He also requested and excepted to the refusal of instructions (9) that there was no evidence to warrant a finding that plaintiff's nervous or other troubles, after a tube was removed and the wound healed up, were in any way caused by leaving the tube in the wound while she was in the hospital; (11) that there was no evidence to warrant a finding of negligence on defendant's part; (13) and that there was no evidence to warrant a finding that plaintiff was incapacitated for work at any time later than two weeks after the removal of the tube.Sweeney, Sargent & Sweeney and John P. Sweeney, all of Lawrence, for plaintiff.

Essex S. Abbott, of Haverhill, for defendant.

BRALEY, J.

This is an action of tort for personal injuries alleged to have been caused by the defendant's negligence. It was undisputed that the plaintiff while at a hospital was operated upon by the defendant, a physician and surgeon, for appendicitis July 29, 1916, and that on August 4th, symptoms of sepsis having appeared, the defendant for the purpose of drainage inserted in the wound a piece of rubber tubing about 2 1/2 inches long and one-eighth of an inch in diameter. The defendant thereafter and until August 13th dressed the wound and inserted a new tube each day. But on the 15th he went on a vacation, leaving his patient in the care of Dr. Laskey, whose first dressing was on August 16th, and who continued as the physician in charge until the plaintiff left the hospital, and thereafter at her residence up to September 6th, when the wound appeared to be clean and healed. In his treatment Dr. Laskey did not insert a drainage tube, and the jury could find on the plaintiff's evidence that after leaving the hospital she improved rapidly and gained in strength until the following September, when her health began to decline and she experienced much tenderness with a sensation of circulation in the wound, which in November opened and something protruded from it, A nurse, being called, pulled from the wound a tube covered with blood, about 2 1/2 inches in length. It is unnecessary to describe the effect of the condition described upon the plaintiff's health and capacity...