Hasemeier v. Smith

Decision Date14 November 1962
Docket NumberNo. 48959,48959
Citation361 S.W.2d 697
PartiesJames Lee HASEMEIER, Appellant, v. Hugh R. SMITH, Respondent.
CourtMissouri Supreme Court

John T. Sluggett, III, Clayton, for appellant.

Morris E. Stokes, Burton H. Shostak, Moser, Marsalek, Carpenter, Cleary Jaeckel & Hamilton, St. Louis, for respondent.

COIL, Commissioner.

Mr. Hasemeier, the plaintiff below, filed a malpractice action wherein he claimed $25,000 as damages for the wrongful death of his wife which he averred was due to defendant's negligence. Defendant's motion to dismiss on the ground that plaintiff's petition did not state a claim upon which relief could be granted was sustained, and the trial court adjudged 'that this cause of action be and is hereby dismissed without prejudice.' Defendant has moved to dismiss this appeal on the ground that the judgment of dismissal was not final and appealable.

Defendant concedes that a judgment dismissing an action for failure of the petition to state a cause of action is a final appealable judgment unless the trial court specifies otherwise. Defendant contends that because the dismissal of the present 'cause of action' was without prejudice and because Section 510.150 RSMo 1959 and V.A.M.S. provides that upon a dismissal without prejudice another action may be brought for the same cause, the trial court's dismissal judgment thereby specified that the judgment was not final.

When a petition is dismissed on the ground that it fails to state a claim upon which relief can be granted, the ensuing judgment of dismissal is final and appealable. The fact that the plaintiff may, if he chooses, bring another action for the same cause does not alter the fact that that judgment was a final adjudication as to that petition and if plaintiff chose to stand on that petition, the judgment was final and appealable. See Douglas v. Thompson, Mo., 286 S.W.2d 833; Healy v. Atchison, T. & S. F. R. Co., Mo., 287 S.W.2d 813, 814, 815; Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793, 796; Wegman v. Fendelman, Mo.App., 333 S.W.2d 290, 293, 297[6, 7]. Plaintiff, having elected to appeal from the judgment dismissing his 'cause of action' without prejudice, rather than to bring another action, would be estopped to bring another action for the same cause after an appellate court had affirmed the trial court's dismissal judgment in cases such as this where the trial court's judgment was that plaintiff had not stated a claim on which relief could be granted and was treated by plaintiff as an adjudication on the merits. Such is unlike the situation in Douglas v. Thompson, supra, where a judgment of dismissal without prejudice for failure to comply with the rule that required plaintiff's address to be stated in the petition, although an appealable judgment, did not prevent the commencement of a new action under Section 516.230 RSMo 1959 and V.A.M.S. after affirmance of the dismissal judgment by this court. Douglas v. Thompson, supra, 286 S.W.2d 835.

Plaintiff alleged that when his wife, now deceased, was pregnant she employed defendant, a physician and surgeon specializing in obstetrics, to attend and treat her for the remaining prenatal period, to deliver her child, and to render required postnatal care; that on January 21, 1961, plaintiff conveyed his wife, then in labor, to a hospital where she was placed under the exclusive control of defendant who, at 12:30 a. m. on January 22, advised plaintiff that the baby was dead and it would be necessary to 'take' the baby to prevent complications detrimental to the health of his wife; that thereafter the wife was taken to the delivery room where a general anesthetic was administered, as the result of which she became unconscious and, never regaining consciousness, died at 6 a. m.; that prior thereto a live, healthy, female child 'was extracted from the uterus of the plaintiff's decedent' and the child was at the time of filing the petition well and normal in all respects; that the 'fatality rate of mothers in childbirth in modern hospitals * * * is so * * * low' as to not be 'the subject of statistics'; that the death of plaintiff's wife was proximately caused by the negligence and carelessness of the defendant in administering to her, including the prenatal and postnatal care and the delivery of the child and the administration by defendant of the anesthetic; that the exact nature of such carelessness and negligence 'plaintiff cannot state and does not know as plaintiff was not present at any of the times of such treatment and plaintiff's decedent was not conscious.'

Plaintiff asserts that the trial court erred in adjudging his petition insufficient for the reason that the petition stated a claim for relief under the res ipsa loquitur doctrine and for the further reason that, in any event, the petition stated a claim entitling plaintiff to relief under his allegations of general negligence.

It is our view that the res ipsa loquitur rule is not applicable to the occurrence as alleged in plaintiff's petition. Res ipsa loquitur is a rule of evidence whereby a submissible issue of negligence may be made by adducing a particular kind of circumstantial evidence, viz., by showing the fact of an occurrence which, because of its character and circumstances, permits a jury to draw a rebuttable inference, based on the common knowledge or experience of laymen, that the causes of the occurrence in question do not ordinarily exist in the absence of negligence on the part of the one in control.

'Generally, the doctrine of res ipsa loquitur is not applicable in malpractice cases,' and only in unusual circumstances may a physician or surgeon be found guilty of a failure to exercise the requisite degree of care in the absence of expert medical testimony tending to so prove. Williams v. Chamberlain, Mo., 316 S.W.2d 505, 511. Thus it has been held that no inference of negligence arises (and that the res ipsa loquitur rule is not applicable) from the fact alone that an unfavorable result ensues from treatment or surgery even though the unfavorable result may be a rare one in the particular case, Ritter v. Sivils, 206 Or. 410, 293 P.2d 211, 213; or from the fact alone that the result of surgery was fatal, Sanders v. Smith, 200 Miss. 551, 27 So.2d 889, 892[2, 3], Barker v. Heaney, Tex.Civ.App., 82 S.W.2d 417, 419, Loudon v. Scott, 58 Mont. 645, 194 P. 488, 492[8-10], 12 A.L.R. 1487; or from the fact alone that the patient died while under an anesthetic or while one was being administered, Mitchell v. Atkins, 6 W.W.Harr. 451, 36 Del. 451, 178 A. 593, 595, Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172, 176. See also, Thompson v. Lillehei, 8 Cir., 273 F.2d 376, 381[3-5]; Annotations in 162 A.L.R. 1265; 29 A.L.R.2d 501, 504, Sec. 3; 37 A.L.R.2d 1284, 1294, Sec. 11; 58 A.L.R.2d 216, 228, Sec. 8.

There is a line of cases in which various courts have held the res ipsa loquitur rule applicable where the patient receives, during the course of an operation or medical treatment, especially if the patient is unconscious, an unusual injury; that is, for example, an injury to an unaffected portion of the body, i. e., one unconnected with the area of the operation or treatment. See for example, Oldis v. La Societe Francaise De Bienfaisance Mutuelle, 130 Cal.App.2d 461, 279 P.2d 184, 186[1, 2] (patient burned while in surgery on a part of the body not within the area of or affected by the surgery); Poor Sisters of St. Francis v. Long, 190 Tenn. 434, 230 S.W.2d 659, 662, 663 (patient hospitalized for childbirth and during delivery received a compression of the eighth vertebra and a comminuted fracture of the humerus in the left shoulder area); Meadows v. Patterson, 21 Tenn.App. 283, 109 S.W.2d 417, 419[2, 3] (in which the doctrine was recognized where a patient was operated for appendicitis and while unconscious received an eye injury probably inflicted by a fingernail, but the court refused to apply the doctrine because a finding or inference that the eye injury occurred in the operating room as opposed to some other place at a later time was not justified).

There are cases wherein it is alleged that a physician or surgeon left a foreign object in an operative cavity which are sometimes by some courts referred to as res ipsa loquitur cases, although probably they are specific negligence cases. Williams v. Chamberlain, supra, 316 S.W.2d 511, and Missouri cases there cited.

The present case falls into neither of the mentioned categories and aside from every other question which might be suggested pertaining to the applicability of the res ipsa loquitur rule under the facts alleged by plaintiff, it is sufficient to point out that (assuming the allegations of the petition that the doctor 'took' and 'extracted from the uterus' the child means that a Caesarean section was performed for the sole reason that defendant thought the child was dead) the only relevant inferences possible from the fact and character of the occurrence stated in plaintiff's petition are that an unnecessary operation was performed, and perhaps an extremely tenuous inference that in the absence of that operation no death would have occurred. It is apparent, however, that those inferences, even if both were justified, do not supply the absent, presently unjustified, but essential prerequisite to the application of the doctrine that laymen know, based on their common knowledge or experience, either that a Caesarean section ordinarily would not have been performed on plaintiff's decedent but for the negligence of defendant, or that a patient ordinarily does not die during the course of or as a result of prenatal care,...

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    ...to support a claim brought under the theory of res ipsa loquitur. The trial court ruled that under this Court's opinion in Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962), an expert witness is not permitted to testify in a res ipsa loquitur case. This means, it concluded, that since medi......
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