Hague v. Threadgill

• Decision Date: 08 November 1921
• Docket Number: No. 16563.,16563.
• Parties: HAGUE v. THREADGILL.
• Court: Missouri Court of Appeals

236 S.W. 895

HAGUE v. THREADGILL.

No. 16563.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Rehearing Denied December 29, 1921.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

"Not to be officially published."

Action by Robert D. Hague, an infant, by Albert F. Hague, his next friend, against Jesse M. Threadgill. From judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant.

Julius R. Nolte and James E. Hereford, both of Clayton, for respondent.

RIGGS, C.

Plaintiff, an infant, by his next friend, sues the defendant, a practicing physician of St. Louis county, for alleged malpractice.

The petition avers that on November 25, 1917, plaintiff consulted the defendant with reference to the removal of his tonsils and adenoid tissue, and, that defendant was employed for a reasonable compensation to perform an operation for the removal of the same. It is then alleged that—

"Defendant so negligently, carelessly, and unskillfully conducted himself in and about said operation that through and by reason of his negligence, carelessness, and unskillfulness he negligently, carelessly, and unskillfully cut and severed the right side of plaintiff's tongue, cut out a piece thereof, and as a direct result of said defendant's carelessness, negligence, and unskilfulness, an aforesaid, plaintiff's tongue is now permanently maimed, crippled and deformed."

After the filing of a general denial there was a trial before a jury in the St. Louis county circuit court, which resulted in a verdict for plaintiff for the sum of $2,000. Judgment being rendered for that sum and the defendant being unsuccessful in obtaining a new trial, he brings the cause here for review.

The errors assigned are: (1) Failure to sustain defendant's demurrers to the evidence offered at the close of plaintiff's case and also at the close of all the evidence; and (2) error in giving two instructions offered by the plaintiff.

I. As to the propriety of sustaining defendant's demurrers. In considering such question it is elemental that all of the evidence on behalf of plaintiff must be considered as true, and from it must be drawn in plaintiff's favor all reasonable inferences, and where defendant has offered testimony, such testimony, if any, favorable to plaintiff, must be taken into consideration, and all unfavorable testimony disregarded.

To establish the allegations of the petition with reference to negligence in the cutting of plaintiff's tongue, plaintiff offered the testimony of his mother and father in regard to certain admissions, hereinafter noted, made by the defendant, and also the testimony of Dr. Smith, a throat specialist. The defendant admitted that the plaintiff's tongue was cut and injure during the operation, but contended that such was a pure accident, which occurred when it became necessary to quickly remove the tongue from the plaintiff's throat, the same having been swallowed by plaintiff while under the anæsthetic, and that such action was necessary in order to save plaintiff's life.

Plaintiff's evidence tended to prove he was taken to the defendant because of defective hearing, and that his tongue was in every way normal before the operation. During the operation the defendant was assisted by his son, a medical student, who administered the anæsthetic. There was considerable difficulty experienced in keeping the boy under the influence of ether, which was used as the anæsthetic, and there is evidence to the effect that the supply of ether gave out, and chloroform was then used by the defendant. Mrs. Hague, the mother of plaintiff, testified that after the defendant began operating on her son he was bleeding profusely, and that the doctor called the witness and said:

"Mrs. Hague, I want you to come over here; I want to show you something; now when you get home I don't want you to be afraid, but I made an awful mistake—I made the mistake of my life—I have cut the boy's tongue."

The witness further stated the defendant said that he could not work very much on the boy then because he was bleeding too much, and that the defendant also stated that "the clamp slipped and cut the boy's tongue."

The boy's father testified that the defendant later on in the day of the operation stated to him:

"Well, that was an awful mistake; that was the mistake of my life; I would not have it happen again for anything on earth."

Dr. James M. Smith, who was a specialist in diseases of the ear, nose, and throat, and who had performed like operations several thousand times, testified that he had never found it necessary to cut the tongue of a patient, and in fact had never done so, and that by reasonable care a surgeon would not in an operation of this kind cut a tongue, even if the patient's tongue had dropped back into his throat. The following occurred:

"Q. Doctor, you have never cut or lacerated any one in the several thousand cases of tonsils that you have operated on? A. No, sir; I have never cut the tongue. Q. As far as the tongue dropping back into the throat, a physician of reasonable care and skill can secure the tongue and bring it out without cutting it? A. I would think with reasonable care he would not cut the tongue."

It is fair to the defendant to record to some extent his version of the affair. He testified that during the operation the patient collapsed, became blue, and apparently his respiration ceased entirely; that his heart action was apparently gone, and that he thereupon began all precautions to prevent death; that the cause of the collapse was the swallowing of the tongue, which was brought on by the anæsthetic, and, under such conditions, unless the patient gets air at once he will die; that upon the occasion they had difficulty in getting the...