Edwards v. Clark

• Decision Date: 02 November 1938
• Docket Number: 5978
• Citation: 96 Utah 121,83 P.2d 1021
• Court: Utah Supreme Court
• Parties: EDWARDS et al. v. CLARK et al

83 P.2d 1021

96 Utah 121

EDWARDS et al. v. CLARK et al

No. 5978

Supreme Court of Utah

November 2, 1938

For opinion on rehearing see 96 Utah 140, 85 P.2d 768.

Appeal from District Court, Fourth District, Utah County; Dallas H Young, Judge.

Action by Ellis J. Edwards and others against Stanley M. Clark and others for malpractice and negligence. Judgment for defendants, and plaintiffs appeal.

AFFIRMED.

Christenson Straw & Christenson, of Provo, for appellants.

Ingebretsen Ray, Rawlins & Christensen, of Salt Lake City, for respondents.

MOFFAT Justice. HANSON and LARSON, JJ., FOLLAND, Chief Justice, WOLFE, Justice, concurring.

OPINION

MOFFAT, Justice.

The action is for malpractice and negligence. The defendants, physicians and surgeons, were employed to attend Vida Pearl Edwards, deceased wife and mother of plaintiffs.

Upon plaintiffs' evidence the court directed a verdict against them. Hence their appeal.

The amended complaint upon which the trial was had, without quoting, alleged in substance that on September 2nd, 1935, Vida Pearl Edwards was about to be delivered of a child; that Stanley M. Clark, a clinical member with the other defendants, was called and undertook to wait upon her during confinement; (Dr. Clark was not the regular family physician. He was called late and arrived shortly after delivery, the family physician being unavailable); that he severed the umbilical cord and proceeded to have the placenta expelled and delivered; that he did not carefully examine the placenta; that he carelessly failed to ascertain that a portion had not been expelled; that the birth channel had been torn and lacerated; and that he carelessly failed to make examination to ascertain whether there were lacerations of the vagina, and to treat the same. Substantially, it was further alleged that from and after the delivery until the ninth or tenth day, the defendants had charge of the case and called on a number of occasions, but failed and neglected to make any examination of the patient, not even taking the temperature or pulse, and failed to prescribe for or treat her condition, although they were told that things were not right and that her condition was serious; that on or about the ninth or tenth day after the birth, with consent of defendants, another physician was called; that by that time blood poisoning had advanced to such a state that no medical aid could save her life; and that she died on the 12th day of September, 1935, because of negligence of defendants.

In view of the result of the trial and the issues of the appeal, it is unnecessary to further state the pleadings.

Appellant assigns numerous errors. Four are specified and relied upon. They are:

1. Refusal of the court to permit the plaintiffs to file their proposed amendments to the amended complaint, and the orders of the court striking their replies.

We find no merit in this assignment. No authorities are cited and appellants' own statement substantially disposes of the matter. Their language is: "In the proposed amendments and replies, the plaintiffs merely sought to reiterate their original charge that the defendants rendered substantially no care or treatment, and that this was negligence." If the amendments were mere reiterations of matters already pleaded, no error resulted from not permitting their filing. As to the replies, there was nothing in the answer except matters deemed denied under the statute, R. S. U. 1933, 104-11-1, which provides:

"There shall be no reply except: (1) Where a counterclaim is alleged; or, (2) Where some matter is alleged in the answer to which the plaintiff claims to have a defense by reason of the existence of some fact which avoids the matter alleged in the answer. * * *"

2. Rulings on objections to evidence. We have examined the entire record, especially with reference to these matters. We find no error in the rulings of the court adverse to the plaintiffs that could prejudice their cause. The court was liberal in permitting plaintiffs' counsel to ask questions and pursue matters coming from their own witnesses. Plaintiffs' counsel claimed at the trial that some of their witnesses were unwilling witnesses. Whether this were so or not, the court practically permitted counsel for plaintiffs to cross-examine their own witnesses.

3. The granting of defendants' motion for a directed verdict.

4. Denial of plaintiffs' motion for a new trial.

Appellants state that the principal question for determination is the sufficiency of the evidence. In other words, was there sufficient evidence presented to require the submission of the matter to the jury?

The case was properly taken from the jury. Had the trial court been in doubt and submitted the cause to the jury, we are of opinion on an appeal on the same record, the cause would have required reversal for insufficiency of the evidence to sustain a verdict favorable to plaintiffs.

Plaintiffs' own statement of the evidence as amplified by defendants and the record itself shows that Vida Pearl Edwards, at the time of her death, was thirty-five years of age--the mother of four children, including the child born a few days prior to her death, September 12, 1935. Prior to September, 1935, her health was good. She was expecting the birth of her fourth child. Her family physician at the moment was unavailable, and, in the emergency, Dr. Stanley M. Clark was called by telephone at his office in Provo by Ellis J. Edwards at Orem to come and attend the case. This call was made between ten and eleven o'clock P. M., September 2nd, 1935. Dr. Stanley Clark arrived at about eleven o'clock. The baby had been born from three to five minutes when Dr. Clark arrived. After tying the umbilical cord, he cut it, bandaged it and handed the baby to the mother of the patient and instructed her to bathe Mrs. Edwards with lysol and water. Sanitary pads and bandages were prepared and used. After wiping the vulva with antiseptic cotton, he helped change Mrs. Edwards' clothes and bedding. He gave no directions except a schedule by which to feed the baby and instructions to give Mrs. Edwards light food. Mrs. Edwards was not washed till next morning, and no directions were given. The placenta was expelled, examined generally as it came from the mother into a vessel and then as it was passed from the vessel into a jar.

Dr. Stanley M. Clark visited the home the morning after the birth. He merely indicated she was "doing fine." He made no examination of Mrs. Edwards, but told her mother to give her something light to eat.

The first day Mrs. Edwards was alert and said she felt too good to be in bed. Later she complained of a headache, a pain in her side, and that her legs ached like they were paralyzed,--and those in attendance rubbed them. Her attendants stated that about the third or fourth day she had a fever, and a lump in her side. Dr. Stanley M. Clark visited again on the fourth day. Her temperature was not taken. No examination was made. On the fourth of September she told her father that she did not feel very good. She had a headache and her pulse was between 90 and 100. Mr. Cordner, Mrs. Edwards' father, called Dr. Garn Clark over the telephone and told him that Vida wasn't doing well, wasn't gaining, was losing ground, and asked him to come that evening. Dr. Stanley M. Clark was away and Dr. Garn Clark came to see Mrs. Edwards the following morning. Dr. Garn Clark also called on the fifth day and in the morning of the sixth. On the fifth he asked for a spoon, looked into Mrs. Edwards' throat and said, "You might have scarlet fever." He examined nothing but her throat. Aspirin and quinine tablets were prescribed. Warm soda water and alcohol baths were prescribed. It does not appear that her temperature was taken thermometrically at any time.

On the morning of the sixth Dr. Garn Clark came out and told her not to take any more aspirin but take the quinine. On the afternoon of the sixth, Dr. Stanley M. Clark called and ordered quinine discontinued but to continue aspirin. Mrs. Edwards had said the medicine made her "goofy," and she had to fight to keep from going into convulsions. On the sixth Mrs. Edwards told Dr. Stanley Clark that she had a pain in her side. He told her that would be all right when the uterus went back into its place. There was no examination. The odors were bad. The doctor told her it would be all right in a few days.

On the seventh day of September, Dr. Stanley Clark was there and Mrs. Edwards told him "something is wrong." That she never felt this way before. To which he replied: "You'll be all right in a few days when everything goes back into place." The doctor did not take her pulse or make any physical examination.

No calls were made between the seventh and tenth days of September. On the 10th, Dr. Stanley M. Clark called. At that time Mrs. Edwards had a high fever and a headache. Her face was flushed and she complained of a pain in her side. He told her she was looking fine and would be out in a couple of days. Nothing was done.

Between the fifth and tenth of September, Mrs. Edwards carried a high temperature and her pulse was gaining. On the tenth day another doctor was called upon agreement with Dr. Stanley M Clark. He reported the temperature to be 104. The next morning the new doctor, in connection with Mrs. Cordner, Mrs. Edwards' mother, made an examination of the vagina. Mrs. Cordner says she saw the doctor take out a piece of the afterbirth, also a clot of something white, and that she saw a tear in the right side of the vagina. That the piece of the afterbirth was about three inches long, about an inch and a half wide and about one-half inch thick. Mrs. Cordner bathed Mrs. Edwards every day. She did not notice any rash, and Mrs....