Henley v. Mason

• Decision Date: 12 June 1930
• Citation: 153 S.E. 653
• Parties: HENLEY. v. MASON.
• Court: Virginia Supreme Court

153 S.E. 653

HENLEY.

v.MASON.

Supreme Court of Appeals of Virginia.

June 12, 1930.

Error to Law and Equity Court of City of Richmond.

Action by notice of motion for judgment by Marguerite Henley, an infant, by her next friend, against W. L. Mason. Verdict for plaintiff was set aside, and judgment entered for defendant, and plaintiff brings error.

Affirmed.

O. M. Selph, R. Dixon Powers, and Leon M. Bazile, all of Richmond, for plaintiff in

error.

Robt. H. Talley and Parrish & Butcher, all of Richmond, for defendants in error.

CAMPBELL, J.

Plaintiff in error, plaintiff in the court below, an infant 15 years of age, by her next friend, brought her action of trespass on the case against the defendant, W. L. Mason, alleging in her notice of motion negligence and lack of skill in the performance of a tonsil operation upon her. The allegation of the notice upon which recovery is based is that the defendant "did perform said operation for the sole purpose of removing my tonsils, in which operation you and * * * your servants * * * did by your failure to use due and proper care, and by your lack of skill and that of your agents * * * knock out, extract, push out, or in some careless and negligent manner, cause to be knocked out, pushed out, extracted, or in some manner cause the loss of two of my front teeth."

There was a verdict for the plaintiff which, upon motion of the defendant, was set aside by the trial court on the sole ground that the evidence was insufficient to support it, and judgment was entered for the defendant. This action of the court is assigned as error.

The general principles of law applicable to the questions involved in the instant case have been laid down by this court in Hunter v. Burroughs, 123 Va. 113, 96 S. E. 360; Fox v. Mason, 139 Va. 667, 124 S. E. 405. The general doctrine, supported by the great weight of authority, is to the effect that a physician or surgeon is not an insurer of a cure, or even of beneficial results, unless he has bound himself by special contract to effect a cure. If there be no special contract, then the law imposes upon him the duty of exercising the highest degree of diligence and skill which is common to and exercised by the average member of the profession in good standing in similar localities and in the same general line of practice.

It is also a well-settled rule of law that, unless the doctrine of res ipsa loquitur is clearly applicable, then the standard for the measure of the skill exercised by the physician or surgeon is not to be left to the whim or caprice of a jury upon nonexpert evidence, but is to be shown or judged by the testimony of medical experts of good standing in the same line of practice. Were the rule otherwise, it would open wide the avenue of harassment and subject the medical practitioner to a handicap too hazardous to carry.

The opinion of the late Mr. Chief Justice Taft (then a United States Circuit Judge), in Ewing v. Goode (C. C.) 78 F. 442, 443, when read in connection with Hunter v. Burroughs, supra, we think clearly states the rule obtaining in this state. In the Ewing Case it is said: "A physician is not a warrantor of cures. If the maxim, 'Res ipsa loquitur, ' were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the 'ills that flesh is heir to.' "

In her petition for a writ of error, plaintiff urges upon us the application of the doctrine of res ipsa loquitur. A careful study of the record leads us to the conclusion that the doctrine invoked is not applicable when viewed in the light of the facts of this case. The allegation of the notice of motion is that the defendant, in performing a tonsil opera-tion, failed to use due and proper care, and by reason of a lack of skill knocked or pushed out two of plaintiff's front teeth. The action is based primarily upon the negligent performance of a tonsil operation. In all tort actions the basis of recovery is negligence. The burden was upon the plaintiff to show that the injuries complained of resulted from the negligence of the defendant.

The sole question involved in the assignment of error is whether the evidence, considered as a whole, is sufficient to sustain the verdict of the jury. The contention of the plaintiff is that the evidence shows conclusively that the defendant, in preparation for the tonsil operation, inserted a metal gag in plaintiff's mouth in an improper manner, and that at the time he was inserting the gag he was looking in an opposite direction from plaintiff, and as a result of this inattention the plaintiff lost her teeth.

The case made out by the defendant may be summarized thus: The parents of the plaintiff employed Dr. W. L. Mason, a specialist in nose and throat conditions, to remove the tonsils of the plaintiff. On July 27, 1026, the plaintiff was prepared for the operation and brought to the operating room and placed on the table. The anæsthetist proceeded to administer ether in the usual manner, greasing the face, covering the eyes, placing a cone over the face and applying the anaesthetic by the drop method. The administration of the ether through the cone continued to a point where the patient was sufficiently anæsthetized to proceed with the next step in the operation, which was to insert a metal gag to hold the patient's mouth open during the operation. The gag was of the type in customary and approved use, and consisted of two flanges pressing against the upper and lower teeth and connected by a spring which held the teeth open, and could only be released by depressing a spring or lever. In other words, the spring in the gag allowed the gag to open wider as the patient's mouth opened, but, once opened, it would not close except by a pressure from the person inserting the gag. Biting down on the gag by the patient would not close the gag, as the purpose of the gag was to hold the mouth open.

It was shown that it is not the usual and approved practice to wait for the insertion of the gag until the patient is completely anæsthetized, as it is extremely difficult to get the patient's mouth open at this point, but that the usual and approved practice in performing the operation for the removal of the tonsils is to insert the gag at a certain time in the anæsthesia when, in the judgment of the physician, the condition is deep enough to proceed, but not too deep to cause such rigidity of the jaws as would prevent the insertion of the gag. Immediately after the gag is inserted between the teeth, a rubber; or metal tube is inserted and ether is then sprayed through the tube into the patient's throat by means of a motorized apparatus, and the anæsthetization is completed in this manner. It was shown by all the expert testimony that at this stage of the operation, i. e., when the patient has been partially anaesthetized, the gag inserted, the tube inserted, and the spray started, the ether spray in the throat invariably stimulates the muscles of the jaws, throat, and mouth, and causes motions of the muscles of the jaw, throat, and mouth and a chewing or biting down on the gag. The amount of stimulation to these muscles, resulting in chewing or biting, is determined by the individual equation, and cannot be foretold in advance. All the expert witnesses testified that this chewing down on the gag is invariably present and is not ordinarily the cause for any concern. It was shown that the chewing is sometimes so violent that, where practicable or possible, the surgeon may remove the gag, but it was further shown that, on account of the flanges on the gag being caught behind the upper and lower rows of teeth, it is not always practicable or possible to remove it.

It was further shown that the defendant, Dr. Mason, proceeded with the operation in the customary and usual manner, after the cone had been removed from the face. The ether spray caused the usual stimulation of the muscles, and plaintiff chewed down on the gag. Dr. Mason testified as. to what happened thereafter, and his testimony is not disputed in any particular. He stated that there is always...