Jarboe v. Harting

• Citation: 397 S.W.2d 775
• Parties: Marie JARBOE and Robert M. Jarboe, Administrators of the Estate of Infant Jarboe, Appellants, v. Dr. Charles HARTING, Appellee.
• Decision Date: 19 November 1965
• Court: United States State Supreme Court (Kentucky)

Page 775

397 S.W.2d 775

Marie JARBOE and Robert M. Jarboe, Administrators of the Estate of Infant Jarboe, Appellants, v. Dr. Charles HARTING, Appellee.

Court of Appeals of Kentucky.

Nov. 19, 1965.

Charles A. Williams, Paducah, for appellants.

Wheeler, Marshall & Manchester, Paducah, for appellee.

CULLEN, Commissioner.

Appellee Dr. Charles Harting made a diagnosis that appellant Mrs. Marie Jarboe, a 33-year-old married woman, was suffering from a uterine tumor, and pursuant to that diagnosis he subjected her to an operation in the course of which no tumor was found but the fact was discovered that Mrs. Jarboe was six to eight weeks pregnant. Twenty-two days after the operation Mrs. Jarboe had a miscarriage. Subsequently she brought action against Dr. Harting to recover damages for bodily injuries, pain and suffering, and hospital and medical expenses. Her husband, who had obtained appointment as administrator of the estate of the aborted child, joined in the suit seeking damages for wrongful death of the child. At the close of the plaintiffs' proof the court directed a verdict for the defendant and judgment was entered dismissing the claims. The Jarboes have appealed, maintaining that their evidence created jury issues.

For reasons hereinafter discussed we have concluded that the Jarboes' evidence was insufficient to have sustained a jury finding that the miscarriage was a proximate result of the operation. Accordingly, the court properly directed a verdict for the defendant on the claim of the administrator (we do not reach the question of whether the law recognizes a cause of action for wrongful death of a previable child). However, the claim of Mrs. Jarboe for personal injuries was not limited to those attributable to the miscarriage but included some attributable to the operation alone, so it was not proper to direct a verdict against her if, as hereinafter we shall discuss, her evidence was sufficient to make a jury issue of negligence in the diagnosis and decision to operate.

The evidence as relates to proximate cause consisted only of the fact that the miscarriage occurred 22 days after the operation, and the statement of Dr. Harting that the operation 'could have' caused the miscarriage although in his opinion it did not. There was no medical testimony that the operation probably did cause the miscarriage, nor was there any evidence of any signs or symptoms of impending abortion between the time of the operation and the occurring of the miscarriage.

In Johnson v. Vaughn, Ky., 370 S.W.2d 591, we mentioned the difficulty in proving causation in malpractice cases and we held that circumstantial evidence may in some cases be sufficient to prove causation. But at the same time we recognized the rule that ordinarily expert evidence is necessary to support the conclusion of causation.

In Cumberland R. Co. v. Baird, 156 Ky. 255, 160 S.W. 919; Louisville & N. R. Co. v. Messer, 164 Ky. 218, 175 S.W. 360, and Consolidated Coach Corporation v. Garmon, 233 Ky. 464, 26 S.W.2d 20, the plaintiffs claiming damages for miscarriages were held entitled to go to the jury on the question of causation although they had no expert testimony to support their claims. However, in each of those cases symptoms of impending abortion appeared immediately or shortly after the injury, such as pains in the side and 'flooding spells' in the Baird case, suffering of pain and passing of blood in the Messer case, and intense pains causing continuous confinement to bed in the Garmon case.

Our examination of decisions from other jurisdictions has led us to the conclusion that most other courts would not consider the evidence in the instant case sufficient to establish proximate cause. See Annotations, 13 A.L.R.2d 11; 81 A.L.R.2d 597; 99 A.L.R.2d 1336.

There may, of course, be situations in which causation is so apparent that laymen with a general knowledge would have no difficulty in recognizing it. See Johnson v. Vaughn, Ky., 370 S.W.2d 591; Annotation, 13 A.L.R.2d 11 at page 34. But excepting those situations we have adhered to the rule that the causal connection between an accident and an injury must be shown by medical testimony and the testimony must be that the causation is probable and not merely possible. See Kelly Contracting Company v. Robinson, Ky., 377 S.W.2d 892.

It is general knowledge that miscarriages may result from myriad causes. There is nothing in the circumstances of the instant case to establish probably, rather than merely possibly, that the operation was the cause in this particular instance. Accordingly, we conclude that there was insufficient evidence of causation.

We now consider the question of whether there was sufficient proof of negligence to have required submission to the jury of Mrs. Jarboe's claim for damages for personal injuries attributable to the operation. (Of course there is no proximate cause problem as to those injuries as distinguished from the injuries attributable to the miscarriage.)

The evidence as relates to negligence was (1) Mrs. Jarboe was of an age at which pregnancy could normally occur; (2) she had some symptoms that were compatible with her being pregnant; (3) the question of whether she might be pregnant was raised in discussion at the time of her examination by Dr. Harting; (4) there was available a reasonably reliable test for pregnancy which could have been administered to Mrs. Jarboe and which the doctor told her he would administer in the hospital but which he did not administer; (5) after the operation the doctor told Mr. Jarboe, 'I should have run that test;' (6) there was no emergency condition indicating a necessity for an immediate operation.

Admittedly, the general rule is that expert testimony is required in a malpractice case to show that the defendant failed to conform to the required standard, which is, such reasonable and ordinary knowledge, skill and diligence as physicians in similar neighborhoods and surroundings ordinarily use under like circumstances. See Engle v. Clarke, Ky., 346 S.W.2d 13. However, it is a generally accepted proposition that the...