Glover v. Burke

• Decision Date: 10 December 1938
• Citation: 133 S.W.2d 611
• Parties: GLOVER v. BURKE.
• Court: Tennessee Supreme Court

133 S.W.2d 611

GLOVER v. BURKE.

Court of Appeals of Tennessee, Middle Section.

December 10, 1938.

Certiorari Denied by Supreme Court, December 8, 1939.

Appeal in Error from Circuit Court, Wilson County; O. K. Holladay, Judge.

Action for damages for malpractice by Nellie Burke against Dr. John Glover. From a judgment for the plaintiff, the defendant appeals in error.

Affirmed and rendered.

E. R. Woolard and Louis Chambers, both of Lebanon, for plaintiff in error Dr. Glover.

Jesse Cantrell, of Watertown, and T. B. Finley, of Lebanon, for defendant in error Nellie Burke.

CROWNOVER, Judge.

This is an action for damages for malpractice. It was averred, in substance, in the declaration, that the defendant, Dr. Glover, was employed as a surgeon to remove a small growth known as a cyst or chalazion formed on the underside of plaintiff's eyelid, and to treat the same, and that he negligently removed the cyst and injured her eyeball, which was allowed to become infected, and while in this condition he negligently treated the eye and did not use ordinary skill and ability, with a result that the eyeball became inflamed and seriously affected and had to be removed.

The defendant pleaded not guilty.

The action was tried by the judge and a jury, and it returned a verdict for $450 for the plaintiff Nellie Burke, and against the defendant Dr. Glover, and judgment was entered accordingly. The defendant's motion for a new trial was overruled, to which he excepted, appealed in error to this Court, and has assigned errors, which are, in substance, as follows:

1. The court erred in not directing a verdict for the defendant, as there is no evidence to support a verdict for the plaintiff.

2. The court erred in reading or quoting substantially verbatim the entire declaration to the jury in his charge, whereas he should have stated briefly the substance of the action, the result being that the court over-emphasized the averments of the declaration, some of which were not supported by the evidence, thereby confusing and misleading the jury to the defendant's prejudice.

3. The court erred in charging the jury as follows:

"A physician where he has agreed to and entered upon the treatment of a case is not warranted in leaving the case and going away if the case is in a dangerous condition, without using due diligence to furnish relief for the patient by some other person or to leave the patient in charge of some proper person to look after and care for the patient when he is at the time in an unfortunate, improper and serious condition. As to whether or not one is in that condition, of course, is a matter for your determination from all the facts of the case."

The facts necessary to be stated are that the plaintiff Nellie Burke had a cyst on the underside of her upper eyelid, and she consulted defendant Dr. Glover, who told her that he was a surgeon and physician, and could remove the cyst by a slight operation, that it wouldn't cause her pain or affect her sight, and would be cured within a short time; thereupon, she employed him and he performed the operation, after sterilizing his instruments and his hands. He everted the eyelid, made an incision, and scraped out the tissue with a curette, and put some hydrogen peroxide and a five per cent. argyrol solution on it, dressed and bandaged it, with instructions for her to go home, remain quiet and not to touch it or her eye, so that it would not become infected. She returned to his office every day for treatment for almost two weeks. The doctor had an engagement to attend a doctors' meeting in St. Louis, and made arrangements with another colored doctor in Lebanon to treat her in his absence, and instructed her to call on this colored doctor.

He says her eye was doing nicely and was not infected when he examined her last, but three or four days before he left he noticed a white circular ring in the iris around the outer portion, which gradually grew cloudy and continued cloudy.

On the day after the doctor left for St. Louis, the plaintiff called on the other colored doctor, who examined her eye and found the entire eyeball completely inflamed, and he refused to treat it, as he was not an eye specialist, and advised her to consult a specialist at once, and she consulted an eye specialist in Nashville who found her eyeball badly infected and it grew worse under treatment for a few days, and it became necessary to remove the ball. After which operation she recovered, with the loss of an eye, and instituted this action.

1. The first assignment of error, to the effect that there was no evidence to support the verdict and that the court erred in not directing a verdict for the defendant Dr. Glover, is not well made and must be overruled.

We think there is no evidence to sustain the contention that the doctor injured her eyeball in operating on her eyelid. Her eyeball may have become infected by her own fault in adjusting the bandages or in rubbing her eye, or it may have resulted from an abscess caused by syphilis. There is no evidence as to the cause of the inflammation of the eyeball.

The defendant insists that she was treated for syphilis and gonorrhea in 1931 by Dr. Bacchus, and quit before she was...