Harlan v. Bryant
| Decision Date | 29 January 1937 |
| Docket Number | No. 5763.,5763. |
| Citation | 87 F.2d 170 |
| Parties | HARLAN v. BRYANT. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Frank P. North, of Rockford, Ill., and Edward W. Rawlins and James F. Wright, both of Chicago, Ill., for appellant.
F. H. Stinchfield and Perry R. Moore, both of Minneapolis, Minn., and C. K. Welsh, of Rockford, Ill., for appellee.
Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
Robert Clark Bryant, an infant, brought suit in the District Court against Dr. N. R. Harlan, alleging the negligent infliction of certain injuries to his eyes immediately following his birth on April 20, 1932. The jury found for the plaintiff and judgment was rendered against defendant for the sum of $7,750.50, from which defendant appeals.
The complaint alleges that defendant was negligent in the following respects:
1. That following the birth of plaintiff he wholly failed and omitted to give any personal attention whatsoever to plaintiff.
2. That he left the child wholly in the hands of his assistants and servants, then working under his control and direction and subject to his supervision and authority, and that they, the said servants, negligently and carelessly instilled into the eyes of the infant as an escharotic, some deleterious substance which burned and destroyed the superficial layers of the cornea of both eyes and otherwise permanently injured plaintiff's eyes.
3. That defendant negligently and willfully failed to examine and treat plaintiff's eyes for three days following the instillation of the escharotic.
We accept the following as the controlling facts which are without substantial dispute:
The father and mother of plaintiff employed defendant, a duly licensed physician and surgeon, to care for the mother during pregnancy and to care for the mother and child at the time of birth. As the time approached for delivery of the child, the mother was taken to the Evangelical Deaconess Hospital in Freeport, a hospital selected by her. After exhausting his efforts to bring about a normal childbirth, the defendant performed a Caesarian operation and delivered the child. Upon removing the child the doctor patted him on the back and clamped and severed the cord. The child cried and opened his eyes, appeared to be normal, and was handed by the doctor to the nurses. The obstetrical supervisor, Miss Morrison, a hospital employee, after swabbing the mouth and nose of the baby caused him to be removed from the operating room to the nursery on the floor below where the usual care was given by those in charge at the hospital. More than an hour later one of the nurses without the knowledge of the defendant undertook to administer the Crede treatment and selected a tube which had been supplied the hospital by the State Board of Health, containing a 1 per cent. silver nitrate solution, but she inadvertently squeezed the tube too tightly and lost the contents. This being the only tube available, Miss Morrison thereupon directed one of the nurses to go to the drug department of the hospital and prepare and bring her a 2 per cent. silver nitrate solution. The nurse brought her a brown bottle so labeled and from the contents she administered the treatment to the baby's eyes. An unexpected reaction immediately manifested itself and the eyes turned white. The nurse, thereupon, applied a saline solution, and having only one ounce present procured more from across the hall and continued to apply this solution until she had used four ounces. The eyes and lids were severely burned.
We return to the operating room. After handing the baby to the nurse, Dr. Harlan gave his undivided attention to the mother — the uterus was bleeding profusely from the wound and the placenta was yet to be removed. The situation was a serious one and demanded not only skill but speed. The operation was completed, the wounds closed, and the mother taken to a hospital room, the entire operation occupying some forty minutes. The doctor thereupon washed and dressed, went to the mother's room where he examined her, and then proceeded to the nursery where he found the baby sleeping. He examined the pulse and the cord and finding the baby in satisfactory condition left the hospital. He again visited the child about 7 o'clock that evening when he first learned that a so-called Crede treatment had been administered to the baby's eyes. He prescribed boric acid irrigations and warm and cold compresses to be applied to the eyes. The baby's eyelids continued to become inflamed and swollen and remained so for a long time. Dr. Rideout, an eye specialist, was called the second day after the baby's birth and he prescribed for it, approving the treatment already prescribed by Dr. Harlan.
The story of the parents' efforts to bring some measure of relief to their child by enlisting leading specialists of the Middle West is a most human and pathetic one. For a considerable time the child was blind, but later showed such remarkable improvement as to astound the eye specialists who had him in charge. At the time of trial in June, 1935, he had regained a substantial vision.
It was the custom for the nurses at the Evangelical Deaconess Hospital to administer the Crede treatment in all normal childbirth cases and was done as a matter of routine. The hospital was a charitable institution and the defendant had no connection therewith except that he was on the medical staff. The nurses were employed by the hospital and if they received compensation were paid by the hospital. The doctor had given no directions for the administration of any Crede treatment and neither had he directed that it be not administered. Its administration was unnecessary in a Caesarian birth; but not bad practice to administer it in all cases.
The following asserted facts are in dispute, but in no event controlling:
That the mother requested one of the hospital nurses to administer a silver nitrate solution and inquired after regaining consciousness if it had been so administered; that Dr. Harlan stated that he saw the condition of the child's eyes for the first time on Friday (second day following birth) and regretted that he had not known of it before; that he wished he had had the forethought to caution the nurses not to administer the Crede treatment as it was unnecessary in a Caesarian birth; that the present crossed condition of one of the eyes is a result of the injury.
We accept the version most favorable to appellee as we are considering alleged error in not directing a verdict. No complaint is made of the amount of the judgment — indeed, if a liability exists the judgment is small.
We think it must be conceded that the asserted grounds of liability No. 1 and No. 3 are without substantial support in the evidence. If the judgment is to be sustained, it must be under the second charge, that is, that the nurses who procured or administered the escharotic were negligent and that for what they did defendant was responsible. We shall, for the purpose of this opinion, assume the negligence and limit ourselves to a consideration of whether the defendant is responsible for the acts of those who brought about the injury upon the doctrine of respondent superior.
In 1933 the Legislature of Illinois enacted a law making it the duty of any physician or nurse who attends or assists at the birth of a child to instill or have instilled in each eye of the new born baby. as soon as possible and not later than one hour after birth, a 1 per cent. solution of silver nitrate or some other equally effective prophylactic for the prevention of ophthalmia neonatorum (Smith-Hurd Ann.Stat. c. 91, § 108). This law was not in force at the time of the injury complained of, but a somewhat similar act was, except that the provisions thereof were more of an advisory rather than a mandatory nature. The present act is referred to for the reason that it gives recognition to the attending nurse as a proper person to be intrusted with the duty of instillation of the silver nitrate.
It is concededly good practice to administer the Crede treatment in all cases, but the prevailing practice at the time of the birth in question was apparently limited to its use in those cases of normal birth, it being generally deemed unnecessary in cases of a Caesarian section where the amniotic sac had...
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