Dohr v. Smith

• Decision Date: 02 July 1958
• Citation: Dohr v. Smith, 104 So.2d 29 (Fla. 1958)
• Parties: Bertha DOHR and William F. Dohr, her husband, Appellants, v. Marvin SMITH, Bessie S. French, and The General Hospital of Greater Miami,Inc., a Florida corporation, Appellees.
• Court: Florida Supreme Court

Page 29

104 So.2d 29

Bertha DOHR and William F. Dohr, her husband, Appellants, v.Marvin SMITH, Bessie S. French, and The General Hospital of Greater Miami,Inc., a Florida corporation, Appellees.

Supreme Court of Florida.

July 2, 1958.

Boyle & Boyle, Miami, for appellants.

Blackwell, Walker & Gray, Miami, for Marvin Smith.

Dixon, DeJarnette, Bradford & Williams, Miami, for Bessie S. French.

Morehead, Forrest, Gotthardt, Greenfield & Greenberg, Miami, for General Hospital of Greater Miami, Inc.

THOMAS, Justice.

This litigation followed an operation undergone by the appellant, Bertha Dohr, to whom we will refer as the 'patient', performed by the appellee, Dr. Marvin Smith, whom we will call the 'surgeon', at The General Hospital of Greater Miami, Inc., appellee, to which we will refer as the 'hospital', while the appellee, Dr. Bessie S. French, whom we will call the 'anesthetist', administered the anesthetic.

The patient had been advised by the surgeon that it was necessary to have performed upon her a gastric resection to remedy a duodenal ulcer.He then made arrangements with the hospital to use its facilities, and he secured the services of the anesthetist who, however, was not to look to the surgeon for her compensation, but to the patient.

Apparently the operation itself was skillfully performed by the surgeon with the assistance of an employee of the hospital, who is not a party to this action.

It was during the administration of the anesthetic that the incident occurred which the patient claims caused her great injury.

We will now describe briefly the procedure followed by the anesthetist, herself a physician, as she prepared the patient for the operation and tended her during it.She first put the patient to sleep with sodiium pentothal then, in order to supply her lungs with oxygen, inserted a tube or 'airway' into the windpipe, using a laryngoscope which enables the anesthetist properly to place the tube.While doing this the anesthetist, according to her own deposition, heard a faint noise like the cracking of glass whereupon she removed the laryngoscope and examined visually, and with her hand, the patient's mouth.The facing of a tooth came loose and fell in her hand, a peg for a tooth was revealed and a vacant space next to the peg was discovered.

The anesthetist did not immediately inform the surgeon about the incident but at the conclusion of the operation she told him that one of the patient's teeth had disappeared while the anesthetic was being administered.Evidently the anesthetist then searched through the gauze in the waste pail for a missing tooth, while the surgeon seems, according to appellant's version, simply to have left the room.In any event his deposition contained the statement that he did not recall whether or not he examined the patient's mouth.

We continue the discussion of the facts as they are presented by appellants in portions of the record on which they rely Eventually we will give the other side of the story.

The next day the patient's husband, upon seeing the facing recovered by the anesthetist, told her that more was missing and the patient informed her the bridgework consisted of two teeth.The anesthetist informed the surgeon of the situation.The reaction of both of them as described in her deposition was most indefinite.She did not remember whether or not he suggested that x-rays be taken in an effort to locate the missing teeth and, in substance, she said that she thought, and she thought the surgeon thought, the patient had swallowed them.

The patient shortly developed an 'unproductive' cough and this was noted by the surgeon in the hospital records.But no x-rays were taken in an attempt to locate the missing teeth and, according to parts of the record the appellants have chosen to emphasize, no concern seems to have been felt by the surgeon over their whereabouts.To continue, even after the patient returned to her home and her husband renewed his request that search be made by x-ray, the surgeon dismissed the subject with the remark 'I wouldn't worry about it.That cough will go away.'

Several weeks had passed after the operation when the anesthetist, who apparently continued to be apprehensive about the disappearance of the teeth, called on the patient and suggested that they might be lodged in the patient's lung.At this late date x-rays were taken, the two teeth, with gold 'backing', one lacking a facing, were located in the right bronchus and another surgeon removed them by bronchoscopy procedure.

At the conclusion of the testimony introduced by the appellants the judge directed verdicts in favor of all three appellees.

The appellants try to fasten responsibility on the hospital because of the actions of a person to whom we have referred as the one who assisted the surgeon.It is argued on their behalf that this employee, who knew nothing about the missing teeth until the operation had ended, should have found during an examination prior to the operation that the patient had some false teeth, did not examine the patient closely after she learned of the incident, did not tell the surgeon and the anesthetist until two days after the operation.

The charges of misdeeds by her are unsubstantial and wholly insufficient to form a basis for liability on the part of the hospital.Typical of the weakness of the charge against this assistant is the criticism that when she learned of the incident, two days after the operation, 'she failed to display the concern that one would presume in the surgeon who had assisted at the operation.'Supposedly to emphasize this indifference this sentence, quoted from the appellants' brief, is followed by the statement that '(s)he did not contact either (the surgeon) or (the anesthetist).'It is quite clear that the patient had been attended by a competent surgeon and anesthetist, who was a licensed physician, and that both of them knew of the occurrence the very day of the operation.

We find no occasion to disturb the ruling that the hospital was entitled to a verdict of not guilty.

The responsibility of the surgeon and anesthetist is deserving of more...