Evans v. Roberts

• Decision Date: 26 November 1915
• Docket Number: No. 30295.,30295.
• Parties: EVANS v. ROBERTS.
• Court: Iowa Supreme Court

172 Iowa 653

154 N.W. 923

EVANS

v.ROBERTS.

No. 30295.

Supreme Court of Iowa.

Nov. 26, 1915.

Appeal from District Court, Mahaska County; K. E. Willcoxen, Judge.

Action at law to recover damages. Verdict for plaintiff, and defendant appeals. The material facts are stated in the opinion. Affirmed on condition.Wade, Dutcher & Davis, of Iowa City, and Burrell & Devitt, of Oskaloosa, for appellant.

S. V. Reynolds and McCoy & McCoy, all of Oskaloosa, for appellee.

WEAVER, J.

The defendant is a practicing physician and surgeon at Oskaloosa, Iowa, and plaintiff, a child of seven years, resides with her parents in the neighboring town of New Sharon. In November, 1910, plaintiff's parents brought her to defendant's office for treatment. Defendant's diagnosis was to the effect that plaintiff was afflicted with adenoids, the removal of which was necessary to her proper recovery. This operation the defendant undertook to perform, and in so doing it is alleged that he cut off a portion of the child's tongue, and this action is brought to recover damages. Plaintiff charges that defendant performed the operation negligently and unskillfully, in that he failed (1) to use or administer a proper anæsthetic to the patient, or employ a proper person to administer the same; (2) to use the proper instruments and appliances; (3) that his diagnosis was careless and inefficient; and (4) that in performing the operation he carelessly used an instrument known as a “gag,” whereby he cut off and removed a portion of plaintiff's tongue. It is also charged in various forms of expression that defendant did not follow the established practice, or conform to the standards of his profession, and, in general, that his operation upon and treatment of the child was negligent and unskillful. It is alleged that one-third of plaintiff's tongue was cut off, and that as a result thereof she has lost in part the use of her tongue, and her power of speech is permanently impaired. The answer admits that defendant treated the plaintiff, but denies all other allegations of the petition. The issues were tried to a jury, which returned a verdict for plaintiff for $1,100. Motion for new trial was denied, and judgment was entered on the verdict.

In submitting the case to the jury the court withdrew from its consideration the plaintiff's charge of negligence with reference to the administration of an anæsthetic to the patient, as well as the further charge that defendant was negligent in the selection or choice of the instruments employed by him in the operation. Stating the issues to be considered by the jury, the court further limited the charges of negligence to the following: (1) That in performing the operation the defendant did not use ordinary care and skill; and (2) that by reason of such failure to operate with such care and skill the plaintiff suffered injury without contributory negligence on her part.

The evidence offered by plaintiff tended to show that the abnormal growth known as adenoids are found in the upper part of the throat back of the palate, and their removal in ordinary practice does not necessitate any cutting of the tongue, and the instruments ordinarily made use of in such operations are one known as a “gag,” which is inserted between the patient's jaws to hold the mouth open, and another, known as a “curette,” a cutting instrument, which is inserted through the mouth and over the adenoids, in position to operate the blade or cutting edge. The evidence further tends to show that defendant said to the child's father that the operation would not take over a minute, that the father then under his direction took the child on his lap, holding her hands, and with her head upon his breast. In that position the gag was placed in her mouth, an anæsthetic was administered, and defendant proceeded to remove the adenoids with the curette. The father describes the operation as being done very quickly, and the doctor had hardly placed the instrument in the child's mouth before he “jerked it” away; the movement being followed by the scream of the child and the spurting of blood. He further says the child did not move or struggle during the operation. It does not appear whether, in the same movement which withdrew the curette, defendant also pulled away the gag; but it was immediately discovered that the child's tongue had been cut. Defendant saw the condition, said he had cut her tongue, and said it had been caused by the slipping of the gag. The father also testified that a portion of the skin was torn from the child's mouth, several of her teeth loosened, and the side of her mouth bruised. He says he thought that a third of the tongue was taken off, but this is undoubtedly an exaggeration.

The family physician, who thereafter attended her, describes it as a small piece, beginning near the point of the tongue and extending a half of three-fourths of an inch around on the left side or edge of that organ. The wound bled freely; the child cried much, was unable to eat anything for two or three days, and evidently suffered much. The operation was on November 25th, and some time within a few weeks she had so far recovered as to resume her place in school for a short period, and on the following Christmas she declaimed or recited at school and at a church gathering. It is also shown that there are a few words, especially those beginning with “t” and “th,” which she is unable to speak as clearly or plainly as she could before the injury, and the tongue itself is slightly shortened and scarred. A physician testified as an expert that the muscle at the place of the wound is contracted, with the result that, “when the child attempts to put her tongue down, it pulls aside by reason of the scar tissue; the tongue does not have the freedom to turn in the opposite direction as it does this way.” He further expressed the opinion that the deformity of the tongue is permanent. Surgeons experienced in operations of this kind also testified that, if the child operated upon is held securely and does not move or struggle, the work properly performed would not result in wounding the tongue, but that if the child moved at the critical moment, or lifted her tongue, an accident of this nature might occur. There is also evidence tending to show that in such operation the child's tongue should be held down.

The defendant offered no evidence in his own behalf, and, his motion for a directed verdict in his favor having been overruled, the cause was submitted to the jury upon the evidence for the plaintiff. The jury returned a verdict in plaintiff's favor for the sum of $1,100.

[1] I. It is the appellant's contention that there is no evidence in the record to support a finding that he was negligent. With this we are unable to agree. Assuming, for the purposes of this case, the soundness of the argument that in performing an operation a surgeon is not held to guarantee results, and that if he possesses the measure of skill which the law requires a mere failure of judgment in his choice of methods and means is not actionable negligence, such concession is insufficient for the disposition of the issue of negligence in this case as a matter of law. This is not the ordinary case where a practitioner is sought to be charged with liability for alleged improper treatment of some bodily ailment or infirmity. He was employed to remove the adenoids from the plaintiff's throat, and there is neither claim nor proof that he did not successfully remove them. His negligence, if any, was in failing to take due care to avoid injury to the undiseased parts in the vicinity of which the operation was performed, and while it may be true that, had the operation upon the adenoids been unsuccessful and disappointing, no inference of negligence or want of skill would arise therefrom, it does not follow that this rule applies with the same force to an injury done by him to sound and undiseased parts of the plaintiff's person, which he was not called upon to treat and did not pretend to treat. If a surgeon, undertaking to remove a tumor from a person's scalp, lets his knife slip and cuts off his patient's ear; or if he undertakes to stitch a wound on the patient's cheek, and by an awkward move thrusts his needle into the patient's eye; or if a dentist in his haste leaves a decayed tooth in the jaws of his patient, and removes one which is perfectly sound and serviceable--the charitable presumptions which ordinarily protect the practitioner against legal blame where his treatment is unsuccessful are not here available. It is a matter of common knowledge and observation that such things do not ordinarily attend the service of one possessing ordinary skill and experience in the delicate work of surgery. It does not need scientific knowledge or training to understand that, ordinarily speaking, such results are unnecessary, and are not to be anticipated if reasonable care be exercised by the operator. When they do happen, then proof of other facts and circumstances having any fair tendency to sustain the charge of negligence will be sufficient to take the question to the jury; and this may be true, even though, if the alleged negligence pertained solely to the treatment of the diseased parts, the court might be inclined to dispose of it as a matter of law. In the case of Evans v. Munroe (R. I.) 83 Atl. 82, it was proved that a surgeon performing an operation placed a foreign substance in the wound to serve as a drain, which he afterward failed to remove, and the patient suffered injury therefrom, and it was held that proof of this fact alone imposed upon him the burden of explaining his failure in a manner consistent with due care on his part. A similar rule is laid down in Davis v. Kerr, 239 Pa. 351, 86 Atl. 1007, 46 L. R. A. (N. S.) 611, and in Adams v. Hospital, 122 Mo. App. 675, 99 S. W. 453.

That there is evidence of negligence in addition to the fact of the injury can hardly be...