Dixon v. Norberg, 15254.

• Decision Date: 12 March 1945
• Docket Number: 15254.
• Citation: 113 Colo. 352,157 P.2d 131
• Parties: DIXON v. NORBERG.
• Court: Colorado Supreme Court

157 P.2d 131

113 Colo. 352

DIXON v. NORBERG.

No. 15254.

Supreme Court of Colorado, En Banc.

March 12, 1945

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by Emma A. Norberg against L. James Dixon to recover damages arising out of defendant's alleged malpractice. Judgment for plaintiff, and defendant brings error.

Affirmed.

Henry H. Clark and Nathan R. Kobey, both of Denver, for plaintiff in error.

Joseph A. Myers, Karl C. Brauns, and Grant E. McGee, all of Denver for defendant in error.

JACKSON Justice.

This is a malpractice case, tried to a jury, in which defendant in error, as the plaintiff in the trial court, obtained judgment for $7,000 against defendant who appears here as plaintiff in error. Reference will be made to the parties as they appeared in the trial court.

That portion of the evidence which is undisputed discloses that plaintiff, while eating chop suey at an evening meal swallowed a small pork bone which, becoming lodged in her esophagus or throat, caused such distress that she accompanied by her husband, visited defendant's office within an hour thereafter for treatment. There defendant, after making two unsuccessful attempts to remove the bone by means of an instrument carrying a piece of surgical (long staple fiber) cotton on the end, told plaintiff he could do nothing more for her; that the case was one for a specialist who could use an esophagoscope. He thereupon called Dr. Carmody by telephone. The latter instructed defendant to take some x-rays of the pertinent area and then send the plaintiff, with the x-rays, to a hospital. This was done, and somewhat later that same evening Dr. Carmody, by means of an esophagoscope, was able first to locate and then to remove the offending bone. This operation involved placing the patient under an anaesthetic and then inserting the instrument gradually down the esophagus. The basic elements of the instrument are a hollow tube within which run two wires; at the end of one of these is a small electric lamp with which the operator, by means of a reflector, can see the area just ahead of the esophagoscope; at the end of the other wire is a set of diminutive forceps with which the operator may take hold of objects. The operation itself, like other operations, is not without its dangers, but the testimony indicated that the benefits bestowed far outnumber the occasional injuries that may occur. In the instant case the operator testified that he first located some cotton on the left side of the esophagal wall, about opposite where the first rib makes a junction with the clavicle (collar bone) 'and about the location that the shadow shows in the x-ray' which was exhibited to the jury; that it was the cotton that led him to the foreign body. 'I couldn't see the foreign body. I saw the cotton. The cotton was on the foreign body. I couldn't see the bone but I first saw the cotton. The bone came out with it.' Subsequent examination disclosed a rent or tear in the esophagal wall. The bone or cotton, at the time of its removal, was inside, and not outside, the wall. No damage was occasioned by the use of the esophagoscope itself.

On account of this perforation in the esophagus, plaintiff became dangerously ill. Fluid developed in the pleural cavity; mixed infection--streptococcus empyema and also staphylococcus--occurred, and it was necessary to resort to liquid feeding for two weeks to prevent any solid food material working into the pleural cavity. Drainage of the latter became imperative, and the drainage tube remained in plaintiff's side for approximately three months.

Defendant testified that when plaintiff sought his services in removing the pork bone, he first examined her throat by using an illuminated tongue depressor, but was unable to detect anything in that way. He then put on his head mirror and with an electric light in back and one in front of him and holding plaintiff's tongue with a sterile pad, he thought he detected a foreign body in her throat. By means of a pair of laryngeal forceps (introduced in evidence) with a piece of surgical cotton on the end, he proceeded to try to wipe this foreign body from the throat with a sweeping motion from below, upward. Being unsuccessful, he called Dr. Carmody, who instructed him to take x-rays and send the plaintiff to the hospital. He charged plaintiff ten dollars for the x-rays making no charge for services. He stated positively that he did not insert the forceps down the esophagus of plaintiff, and that it would have been physically impossible for his forceps to have reached the spot in the esophagus where Dr. Carmody testified the pork bone was located; that he had had considerable experience in removing foreign objects from throats of patients, although he did not claim to be a throat specialist or an esophagoscopist, but was merely a general practitioner. Dr. Siddon, a witness for defendant, testifying as a general practitioner and not as a specialist, stated that the method recounted by defendant as having been followed by him in this case was approved in the general practice of medicine. Counsel claim that defendant's testimony, being uncontradicted, should also be put in...