Gray v. McDermott, 4-3116.

• Decision Date: 09 October 1933
• Docket Number: No. 4-3116.,4-3116.
• Citation: 64 S.W.2d 94
• Parties: GRAY, Ex'x, v. McDERMOTT et al.
• Court: Arkansas Supreme Court

64 S.W.2d 94

GRAY, Ex'x, v. McDERMOTT et al.

No. 4-3116.

Supreme Court of Arkansas.

October 9, 1933.

Rehearing Denied November 20, 1933.

Appeal from Circuit Court, Pulaski County, Second Division; Richard M. Mann, Judge.

Action by Lucille McDermott and others against W. E. Gray and another. Judgment for plaintiff against defendant named, and Laura Beavis Gray, executrix, substituted as a party on death of defendant W. E. Gray, appeals.

Reversed and cause of action dismissed.

On August 24, 1930, Neil McDermott, the husband and father of appellees, was shot by a highwayman in the city of Little Rock. The bullet passed through the right axillary fold. Immediately after deceased was shot, he was taken to the General Hospital in Little Rock and about an hour later Dr. W. A. Lamb, the family physician of the deceased, was requested to attend him. Dr. Lamb, having information of the injury, called Dr. W. E. Gray, a surgeon, and together they visited the deceased. Upon arrival at the hospital, Dr. Lamb and Dr. Gray found that the patient had been bathed and redressed and the wound had been cleaned and gauze packs applied to the front where the bullet entered and the back where the bullet passed out. Upon examination, the doctors determined and found that the patient's radial pulse was good; that the axillary nerve was not severed and there was no hemorrhage from either front or rear. After a careful examination, the doctors concluded that an expectant treatment should be followed; that the wound should not be probed at that time, but that the patient should be carefully watched and developments noted. After the first examination, Dr. Lamb, the family physician, visited the patient daily and Dr. Gray, only occasionally, and from these visits the two doctors agreed that the patient's progress toward recovery was sufficient until September 2, 1930. On the morning of September 2, 1930, Dr. Lamb again visited the patient and his condition was satisfactory. No clot had been formed, the patient's circulation was good, and his nerves were not impaired. On the afternoon of September 3, Dr. Lamb again visited the patient and noted that a blood clot had formed; that his circulation was impaired, and the nerves in the arm did not react properly to tests. Thereupon, the family of the deceased called in Dr. R. M. Eubanks of Little Rock, who examined the patient. Dr. Eubanks decided that an operation was necessary and posted the operation for the following morning. The next morning Dr. Gray, Dr. Eubanks, and Dr. Lamb performed the operation. When the blood clots, which had theretofore formed, had been removed, the vein or artery began bleeding profusely. Thereupon, the doctors tied only one end of the bleeding vessel and the bleeding ceased. Thereafter a blood clot formed in the vein, passed into the heart, thence into the lung, thereby causing the death of McDermott.

Mrs. McDermott, the widow in her own right and as next friend for her children, instituted this suit against Dr. Lamb and Dr. Gray to compensate the injury and death of her husband and the children's father. The complaint filed was predicated upon two alleged negligent acts of the doctors, as follows:

First, that the axillary vein was severed by the bullet on August 24, 1930, and defendants negligently failed to ascertain this fact until the 3d day of September, 1930; second, that while performing the operation on September 3, 1930, to remove the blood clot which had theretofore formed, the axillary vein began to bleed profusely and defendants ligated one end of the severed vein, but negligently and carelessly failed to ligate the other end of the vein.

Defendants in the court below answered the complaint of appellees by denying generally the allegations of negligence and alleged affirmatively that they had examined the wound carefully on the deceased, exercised their best judgment, and gave to Mr. McDermott the most efficient and careful treatment possible and rendered such treatment in the most modern and efficient and approved methods; that if deceased's death was caused by a blood clot passing into the lungs, it was no fault of theirs and that they were in no way liable therefor.

Before the final submission of the cause to the jury, appellees dismissed their complaint as to Dr. Lamb, but prosecuted the same against Dr. Gray, which finally resulted in a judgment for appellees in the sum of $20,000. During the progress of the suit, Dr. Gray died, and his widow, Mrs. Laura Beavis Gray, as executrix of the estate of Dr. Gray, was substituted as a party.

Other facts and...