Elam's Administrator v. Botkin

• Decision Date: 25 January 1929
• Parties: Elam's Administrator v. Botkin.
• Court: United States State Supreme Court — District of Kentucky

227 Ky. 517

Elam's Administrator v. Botkin.

Court of Appeals of Kentucky.

Decided January 25, 1929.

1. Physicians and Surgeons. — In malpractice action, evidence, showing that defendant did not remain in town and treat decedent following operation or make provision for treatment, but not showing that death resulted from lack of attention or proper treatment following operation, held insufficient to take case to jury.

2. Evidence. — In malpractice action, copy of death certificate, not identified by doctor as true copy of original, held properly rejected, where registrar of vital statistics testified that original had been filed with state board of health, and that the one offered was not true copy.

Appeal from Perry Circuit Court.

S.C. DUFF and H.C. EVERSOLE for appellant.

J.W. CRAFT for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

This is a malpractice suit brought by appellant, Bert Williams, as administrator of the estate of J.B. Elam, deceased, against the appellee, a physician and surgeon, to recover damages because of the death of plaintiff's decedent, which he alleges was the proximate result of negligence on the part of defendant in performing an operation upon decedent for the removal of his tonsils and failing to properly treat him thereafter. At the conclusion of the evidence for the plaintiff, the trial court peremptorily instructed the jury to find for the defendant, and plaintiff has appealed.

The only question on this appeal is whether or not there is sufficient evidence to authorize a submission of the case to the jury.

Members of decedent's family testified that for several days prior to April 16, 1927, when his tonsils were removed, his throat was swollen and inflamed. The operation was performed at the hospital in Hazard, and after the operation the defendant returned with the decedent to the latter's home. He again visited the decedent at the latter's home at 4:30 o'clock on the afternoon of the same day and instructed a member of the family to call him if decedent had a hemorrhage. At that time it does not appear that any symptoms had developed tending to indicate that the operation was not entirely successful. On the following morning the decedent became much weaker, and members of his family sought to locate the defendant, but it was ascertained that he had left Hazard on the preceding night. A number of other physicians and surgeons lived in Hazard, and at least four of these were called and examined the decedent during the day, and at 6:00 p.m. he was removed to the hospital at the suggestion of one of these physicians, where he died during the same night. Four of the physicians who attended plaintiff's decedent on the day following the operation were introduced as witnesses for the plaintiff. These physicians testified that it is not safe to remove tonsils when they are in an inflamed condition since an operation under such circumstances is more...