Delaughter v. Womack, 43082

• Decision Date: 01 June 1964
• Docket Number: No. 43082,43082
• Citation: 250 Miss. 190,164 So.2d 762
• Parties: Michael Roy DeLAUGHTER, a Minor by and through His Mother, Mrs. Billie Burt DeLaughter, as Next Friend, v. Dr. Noel C. WOMACK, Jr., et al.
• Court: Mississippi Supreme Court

Page 762

164 So.2d 762

250 Miss. 190

Michael Roy DeLAUGHTER, a Minor by and through His Mother, Mrs. Billie Burt DeLaughter, as Next Friend, v. Dr. Noel C. WOMACK, Jr., et al.

No. 43082.

Supreme Court of Mississippi.

June 1, 1964.

Thomas H. Watkins, Abe A. Rotwein, Jackson, for appellant.

Daniel, Coker & Horton, Melvin B. Bishop, Jackson, for appellee.

RODGERS, Justice.

This is a damage suit for personal injuries alleged to have been caused to the appellant as the result of a negligently injected dose of penicillin administered by a nurse employed by doctors named in the pleading, (appellees here), and the negligent failure to promptly treat the injury caused by the injection. The facts were submitted to a jury resulting in a verdict in favor of the defendants. The court overruled the motion for a new trial and entered a judgment for defendants; whereupon, plaintiff appealed to this Court.

The appellant has submitted many assignments of error, but since we have reached the conclusion that this case must be retried, we shall discuss only those we deem necessary as a guide.

Appellant and appellees vigorously insist that their respective sides should have been granted a directed verdict in the trial court upon the facts and application of the law to the facts shown. We must therefore give a synopsis of the evidence and circumstances here involved.

This is one of those sad cases growing out of an unfortunate occurrence which is certain to arouse sympathy for both sides. The injury to the appellant came about under the following circumstances:

Michael Roy DeLaughter, a boy, four years old, had been a patient of appelleedoctors since his birth. On January 19, 1961, he complained of discomfort in his ear. His Grandmother, Mrs. Roy DeLaughter, Sr., took him to the office of appellees, where he was examined by Dr. Noel C. Womack, Jr. The doctor directed appellee, Mrs. Margaret W. Sheffield, a registered nurse in his employ, to give the child an injection of penicillin. The nurse gave an injection of Flo-cillin in the left buttock. The child cried, and complained of pain immediately, and in a short time complained of pain in his left leg and foot. His leg and foot became cold. The child's Mother, Mrs. Roy DeLaughter, Jr., noticed blood at the site of the injection and she became alarmed, and at 6 P. M., she reported the child's condition to Dr. Womack by telephone. A prescription was sent from the drug store at the instance of Dr. Womack but at 6:30 the child had apparently gotten worse and the doctor was again advised of his condition. Dr. Womack directed the mother to bring the child to the emergency room at the Baptist Hospital, where he again made an examination of the child. The doctor advised the mother that the child was suffering from a mild reaction to the penicillin injection and prescribed the use of paregoric to lessen his pain, and directed that hot packs be used and that the child's foot be elevated.

Thereafter, apparently the child's condition did not improve so that it was again taken to the office of the appellee-doctors on Friday, January 20, 1961, where, in the absence of Dr. Womack, it was examined by Drs. Ward, Hendrick and Conner. It was discovered that the child's toes were turning blue. Appellant's testimony shows that the doctors were not in accord as to their diagnosis of the child's illness. They directed the mother to continue the medication given by Dr. Womack, including the use of hot and cold packs, and to elevate his left leg. The child continued to suffer, and was again taken to the office of appellees on January 21, 1961, where it was again examined by Drs. Ward, Womack and Hendrick. The mother was then directed to put the child in the Baptist Hospital. Dr. Thomas J. Saffley, a surgeon, was called into consultation and he called Dr. Thomas Marland to give an injection to block the nerve so as to stimulate blood circulation. On February 14, 1961, the first of four operations was performed on the child to amputate the child's toes and to remove the dead tissue and graft skin to cover the wound. On March 18, 1961, another operation was performed to remove the child's foot from the skin graft on its right leg. Two other operations were necessary to complete the skin grafting process.

The appellant offered evidence to show that the appellant-minor had been given many injections of penicillin before January 19, 1961, without adverse reaction or untoward incident; that the gluteal area in the left buttock where the injection was administered contained the superior gluteal artery; that to inject sesame oil and penicillin in an artery would cause an embolism, or clot in the blood vessels; that there was a known method of determining whether the injection of the needle had penetrated a blood vessel, by simply withdrawing the hypodermic plunger so as to determine whether or not blood would come into the syringe; that when the blood supply is blocked by an embolus certain conditions develop, and that these conditions were observed by Dr. Womack on the person of appellant, that he recognized there was a 'circulatory embarrassment in the left lower extremity;' that when a blood vessel is blocked an emergency exists, which will cause gangrene within eight hours unless prompt action is taken to dilate the blood vessels; that there are certain well-known medical methods and medicines known to the medical profession, including the defendant-doctors, which should have been used to relieve the congested area; that although Dr. Womack recognized the 'circulatory embarrassment', he failed to administer the known remedy. Moreover, after the operations on the appellant, Dr. Womack admitted, in writing over his signature, that the child developed gangrene of the toes and this condition was due to intra-arterial injection of penicillin in oil. It is alleged that as a result of the negligence of the nurse, Mrs. Sheffield, in giving the injection into the artery, and the negligence of the doctor-defendants in failing to administer a known remedy, the appellant was required to undergo suffering, pain, surgery and permanent injury.

The defendants introduced evidence to show that the nurse, Mrs. Sheffield, was competent; that the injection was not administered in the gluteal artery; that the child's condition was brought about because of his peculiar reaction to the penicillin injection; that the treatment administered was proper under the diagnosis of sensitivity and allergy; that circulatory embarrassment was not of a sufficient degree to require the treatment for total embolism; that the blocking of the blood vessel in the gluteal region by an intra-arterial injection was such a rare occurrence as not to be within the foreseeable danger required under the law to charge the defendants with negligence; that the written statement of Dr. Womack, wherein he admitted that the injection was intra-arterial, was an effort on the part of the doctor to aid the parents of Michael DeLaughter to collect their insurance.

I

The appellant contends that he was entitled to a directed verdict of negligence, because, it is said, it is undisputed that appellee gave the appellant an injection of penicillin in oil and that the injection caused the resulting gangrene and amputation of a part of appellant's left foot; that the appellees thereafter, less than twelve hours later, discovered, recognized and understood that the appellant was suffering from 'circulatory embarrassment', and they knew and understood that unless treatment known to them was administered promptly to alleviate the patient's serious condition, the danger was imminent that the part of the patient's body below the point where the blood circulatory system was blocked would develop gangrene 'if uncorrected'; that nevertheless, the appellees being so advised, negligently failed to promptly do and perform the known necessary therapy for a period of 110 hours. It is alleged their failure so to do resulted in the described amputation and permanent deformity of appellant's foot, and related injury.

On the other hand, the appellees contend that Dr. Womack diagnosed the patient's condition to be 'vascular reaction to penicillin injection,' and that although he recognized that appellant was suffering from a 'circulatory embarrassment', he did not diagnose the patient's condition as being an embolism caused by arterial injection. Moreover, it was claimed, in order for gangrene to develop there must have existed a total blockage of the blood supply to the affected area, and that in his medical opinion, at the time, the degree of 'circulatory embarrassment' in the patient's foot, did not indicate that appellant was suffering from such condition, as the result of an intra-arterial injection.

The appellees' theory of defense throughout the trial was based upon the proposition that the patient was suffering from a peculiar allergy known as allergic vasculitis and hypersensitivity angiitis, a disease called necrotizing angiitis. It is also asserted that the diagnosis made and the treatment given appellant constituted an exercise of the defendants best medical judgment and was the exercise of that degree of skill and care ordinarily possessed and exercised by physicians in a similar practice in the locality of Jackson, Mississippi.

It is argued that appellant failed to adduce any proof concerning the standard of care and skill to be exercised by a physician or nurse, in administering an injection of penicillin, or standard of care for which the defendants were to be held accountable and that there was no testimony whatsoever showing a deviation from that standard. Appellees cited the case of Toy v. Rickert, 53 N.J.Super, 27, 146 A.2d 510. This case is similar to the case at bar in that a doctor was sued in a malpractice action growing out of a hypodermic injection of penicillin into the buttock of a patient. The damage in the Toy case involved the sciatic...