Harris v. Fall

• Decision Date: 04 January 1910
• Docket Number: 1,589.
• Citation: 177 F. 79
• Parties: HARRIS v. FALL.
• Court: U.S. Court of Appeals — Seventh Circuit

177 F. 79

HARRIS v. FALL.

No. 1,589.

United States Court of Appeals, Seventh Circuit.

January 4, 1910

O. W Dynes and James M. Sheean, for plaintiff in error.

C. Arch Williams and F. S. Loomis, for defendant in error.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

SEAMAN Circuit Judge.

In this action the defendant below, Dr. Harris, is charged with malpractice in a surgical operation and subsequent treatment all performed at Chicago Policlinic Hospital. The direct evidence of facts in the case appears in testimony which is free from conflict in most particulars, and the verdict in favor of the plaintiff rests on deductions from such facts. Numerous errors are assigned for review-- mainly in rulings upon evidence received or offered and instructions to the jury given or refused-- but on examination we believe no reversible error appears, unless it arises out of one of the instructions upon the law of the case. Extended discussion of the several rulings complained of, aside from the instruction referred to, is deemed unnecessary, either for purposes of a new trial or otherwise; and remarks upon leading exceptions will serve for disposition of the others, without specific mention.

The plaintiff, Fall, resided at Toledo, Ohio, was suffering with an ailment, and had been under treatment of Dr. Haskins, of that place, for several months. Believing the trouble to be caused by stone in the right ureter, Dr. Haskins advised an operation by the defendant, Dr. Harris (whom he knew both personally and by reputation as a surgeon of skill), and was authorized by the patient to correspond with Dr. Harris to that end. An arrangement was made accordingly for Dr. Harris to attend to the case, at Chicago, in the Policlinic Hospital. Dr. Haskins and Fall proceeded to Chicago, obtained place in the hospital November 16, 1904, and Dr. Harris operated on November 17th.

Finding no ureteral stone, further exploration was postponed, as Dr Harris states, 'to study the case further before attempting any more radical means'--Fall remaining at the hospital under care of Dr. Harris, and Dr. Haskins returning to Toledo.

In the course of several weeks, the developments were deemed sufficient by Dr. Harris to require another operation. He sent word accordingly to Dr. Haskins, who then returned to Chicago to be present, and the second operation was performed by Dr. Harris at the hospital January 12, 1905. On this occasion two incisions were made-- one in front, reopening the first wound, and ascertaining that the ureter had parted, and the other in the back for removal of the right kidney, which was accomplished.

The present controversy arises out of the last-mentioned operation for removal of the kidney and ensuing treatment of the wound, as the evidence establishes that at some stage of treatment a band of gauze used therein was deposited and left in the kidney cavity, causing serious disturbance, until removed long afterwards, through another operation; and the prior transactions referred to are pertinent only by way of proving the continuous relation which existed between Dr. Harris and the patient, put in issue by the defendant. While several other surgeons and attendants were present during the operation, removal of the kidney, and immediate treating and dressing of the wound, it is undisputed that Dr. Harris personally attended to all of these proceedings, with the usual incidental service of the attendants. In reference to the treatment, Dr. Harris testifies that he 'used fabrics to clean out the wound, ' but left 'nothing in the wound' when finished; that he then 'packed with drainage,' by inserting successively strips of gauze, by means of an instrument, with the first strips reaching 'the bottom of the cavity,' the next 'two inches further up' and so graduating their locations; that he thus 'put in five or six' strips-- making no count or record of the exact number--each strip for such use being seven or eight inches wide and a yard long; that the outer end of each strip was held in a clamp during the process and each end remained outside the wound, for removal at the next dressing; and that he then sewed up the wound, leaving an opening for packing 'two to two and one half inches in length,' and then 'put on the outside dressing.' Other witnesses place the length of the opening thus left at one inch and give different recollections of the number of strips inserted in the wound. Thereafter Fall remained at the Policlinic Hospital until March 2, 1905, under the charge of Dr. Harris, who made frequent examinations of wound and dressings, and on occasions attended to the dressing; but generally Dr. Hamill or Dr. Lane, internes of the hospital, attended to the packing and dressing under instructions given them by Dr. Harris. The testimony is conflicting whether Dr. Harris personally attended to the first packing and dressing, after the day of the operation, and how many strips were then found and removed from the wound. Throughout Fall's stay at the hospital the wound remained open and unhealed, discharged pus, and gave much uneasiness, but he was assured by Dr. Harris that all was going well; and on March 2d. under approval of Dr. Harris, Fall was removed to a Toledo Hospital.

At Toledo Dr. Haskins attended to the drainage and dressing; and after about two months, on consultation with Dr. Randolph, a Toledo surgeon of skill, it was concluded that the conditions required another operation. On June 3d a letter was sent to Dr. Harris, informing him of their opinion and asking advice, but his absence delayed a reply, so that Dr. Randolph operated on June 15th. This operation disclosed in the kidney cavity 'a large piece of gauze' (as described by Dr. Randolph) and 'the granulated tissue had filled up pretty well,' so that he had to 'curette it' for removal of the bunch of gauze, which was found to be of the size and description used for drainage packing. After such removal discharges of pus ceased and the wound healed, so that Fall's recovery had progressed favorably.

The foregoing summary necessarily omits mention of many circumstances in evidence and expert opinions, which may bear upon the issue of personal responsibility for thus leaving the gauze in the kidney cavity; but all such testimony makes for the weight of evidence one way or the other, a matter not reviewable here, and therefore not open to consideration.

The desirability or need of the operation and removal of the kidney is not within the issue; nor is it questionable that Dr. Harris was of excellent repute for skill in surgery, and that the removal was skillfully performed. Neither the fact of his undertaking to...