Gottschall v. Geiger
| Decision Date | 02 May 1921 |
| Parties | ELSIE E. GOTTSCHALL, Respondent, v. JACOB GEIGER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit of Buchanan County.--Hon. Lawrence A Vories, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Randolph & Randolph for respondent.
R. A Brown, R. L. Douglas, Wm. E. Stringfellow, and Strop & Mayer for appellant.
This is an action for damages on account of alleged negligent malpractice. The plaintiff is a farmer's wife, about 33 years of age, living in DeKalb county. Defendant is a physician and surgeon, of 51 years' practice, in St Joseph, Missouri, who formerly held the chair of surgery in Ensworth Medical College and in St. Louis University, and who is now dean of the first named institution. He is unquestionably of high repute and standing in his profession, and there is no charge of a lack of the requisite qualifications of knowledge, skill, training or experience on his part. The gist of the cause of action submitted is that defendant was negligent in diagnosing plaintiff's condition and in advising and deciding upon a surgical operation which he undertook to perform on plaintiff, but, upon opening her abdomen, found that pregnancy , and not a tumor, was the cause of her trouble. There was no charge or complaint of any negligence in the manner of performing the operation. A trial was had, resulting in a verdict and judgment for plaintiff in the sum of $ 3000 from which defendant has appealed.
In April, 1918, plaintiff was the mother of two children, one ten and the other two-and-one-half years old, and up to the last day of May in that year, she was strong and well, able to do the work of a housewife and of assisting her husband in certain of the farm work. On the last named date, however, she became sick, and, upon examination by her family physician, Dr. Clark, he said she had "some involvement of gall bladder." Plaintiff, about the last of July went to defendant in St. Joseph where he diagnosed her trouble as appendicitis, and where he, on August 1, 1918, performed an operation on her for that disease and also, he says, for ovarian trouble which he says he suspected. According to defendant's testimony (and there is no evidence to the contrary), when he performed this operation he found a long, large, highly inflamed appendix. He further found that the right tube, broad ligament and ovary and all parts lying in close proximity thereto were inflamed, that the omentum, or apron that lies over the bowels, was grown fast to the inflamed mass in the right side; that he loosened this, removed the appendix, the right tube, right ovary and broad ligament because they were all diseased and highly inflamed. The left ovary was also cystic and he says he removed about seven-eighths of it, leaving a small healthy portion of that ovary. (The evidence of all the medical experts is that the common and proper practice, in removing the ovaries, is to leave a small portion of one ovary, if possible, since that will help to hinder or prevent nervousness and other untoward effects which will be certain to arise if the whole of both ovaries is removed.) Defendant testified that he also, in this operation of August 1, 1918, found a double tear of the womb produced by her former confinements, and that he sewed up these rents and scraped the womb.
It is agreed on all sides that from this operation plaintiff rapidly recovered, leaving the hospital and going home on the 11th of August, 1918; and plaintiff says that thereafter she was as well and strong as she ever was.
While some vague complaint of this operation seems to be made in the petition, yet, as submitted, the case does not rest upon any cause of action growing out of this operation, but upon the defendant's advising and deciding upon a second operation performed in May, 1919, as the matters hereinafter stated will more fully disclose.
According to plaintiff's evidence, the defendant told her, after the first operation, that owing to the removal of her ovaries, she could never bear children, that it would be an impossibility. However, along in December, 1918, she says she began to think she was pregnant, and about January 1, 1919, she sent her husband to the defendant telling him of her symptoms, and the defendant sent back word that if she didn't get better she had better come in and let him see her. On April 26, 1919, she did so. She says he asked her what the trouble was and she told him it was in her stomach; that he placed her on the examining table and pressed across her abdomen and said she was in the "family way;" that she replied she thought she was, but that he had told her when she was operated on in August that she could not get that way; that he then asked what the operation was and said he had so many he could not remember them unless he looked up his records. He referred to his records and said she couldn't be in a family way, his records showed he had removed her ovaries. Plaintiff says he then "pressed across the abdomen quite a little bit and said it was a tumerous growth," that she would have to have it removed right away as they grew very rapidly. Plaintiff told him, so she says, that she thought she was in the family way and that it couldn't be anything else, and upon defendant asking her why she thought that, she told him "the movement was so strong" and she had every symptom she had before with her other two children; that defendant thereupon said it was not that, it couldn't be, and that if plaintiff could not stay at that time to have an operation, she must come back right away and have it done, she mustn't wait over two weeks as they (the "tumerous growths") grew very rapidly. She also says he told her he couldn't "determine just where the tumor was" and would have an X-ray examination to find out.
Plaintiff says she waited three weeks, however, and came back on May 19, 1919, for the operation; that defendant examined her again in the same manner and told her to go to the hospital that evening; that it was a tumor, that they grew rapidly and it must be removed right away. She says that after the examination, her husband asked defendant if he were not going to use the X-ray and defendant replied no, that it would cost her $ 15 and he didn't think he could tell. Plaintiff says she told defendant she still thought she was pregnant, but that defendant said no it was not that, it couldn't be that, and to dismiss it from her mind.
The next morning, May 20, 1919, she was placed on the operating table, and an anaesthetic was administered, and an incision about six inches long was made in the abdomen about on, or little to the right of, the median line and below the navel. The doctor put his hand into the opening, felt around and found that plaintiff was pregnant. (The doctor says he found the womb bound down by adhesions, which he removed, restoring the womb to its normal position.) Plaintiff was then sewed up, and on the 8th day thereafter left the hospital and went to the home of a relative in the city where she stayed three days and then went to her home. On the 19th day of July thereafter she gave birth to a 9-pound healthy baby boy, fully developed and, according to Dr. Clark the physician who attended her, one that had gone the full nine months' period. It was in good health and thriving at the time of the trial.
Plaintiff claims that as a result of her second operation she has become nervous and weak. She doesn't have any pain whatever, but feels extremely weak, nervous, and has spells of severe headache. These nervous spells come on about every week or ten days; when she tries to do her work they will come on in an instant and she has to go to bed. She had to wear a bandage about her abdomen after the second operation until her baby was born; and during that period she suffered pain from the incision that was made, but the incision healed up about a week before the child was born. All that plaintiff complained of at the time of the trial was that she was extremely weak and nervous and possibly the attacks of headache above mentioned. During the time between the second operation and the birth of the child, she worried over the latter, fearing the effects of the incision that had been made in her abdomen.
According to the evidence of Mr. and Mrs. Brink, neighbors of plaintiff, they were at the hospital in June after the operation and before the baby was born and talked to defendant, and, according to them, Mrs. Brink asked defendant if it would have been necessary to operate if he had used the X-ray and he replied "No, I probably made a mistake; in fact I know I made a mistake." Mrs. Brink didn't understand him to say he made a mistake in not using the X-ray, but supposed he meant he made a mistake in operating. Mr. Brink says defendant said "Probably not" when asked would it have been necessary to operate if he had used the X-ray and that he also said "I probably made a mistake--in fact I know I did," and that he further said "I only know of one other case like it,"
The defendant testified that after the first operation, the plaintiff came to him in April, 1919, complaining that she was not getting along well, that her stomach pained her, that she as nervous and constipated, had a dragging down feeling in her abdomen and said there was a lump there. Defendant says he looked up the record of her previous operation and made a bi-manual examination, having one hand on the abdomen and the other in the vagina; that he found a mass to the right of the median line, the principal part of which was immovable, but the lower part was not; that the neck of the womb was turned to the left high up; that he could not make out what the...
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