Johnson v. Vaughn

• Decision Date: 07 June 1963
• Parties: James JOHNSON, Adm'r of Estate of Celie Johnson, Deceased, Appellant, v. Darrel L. VAUGHN, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 591

370 S.W.2d 591

James JOHNSON, Adm'r of Estate of Celie Johnson, Deceased, Appellant, v. Darrel L. VAUGHN, Appellee.

Court of Appeals of Kentucky.

June 7, 1963.

Rehearing Denied Oct. 11, 1963.

Russell S. Armstrong, Evansville, for appellant.

Geo. R. Effinger, Paducah, Leo King, Henderson, for appellee.

STANLEY, Commissioner.

The appeal is from a judgment from a directed verdict for the defendant, Dr. Darrel L. Vaughn, in an action for negligence and malpractice, charged to have been the proximate cause of the death of Celie Johnson. The plaintiff claims three categories of negligence on the part of the defendant, namely, improper treatment, abandonment of the patient at a crucial time and unreasonably delaying consent for another physician to attend him. Our question is whether the evidence introduced by the plaintiff was insufficient as a matter of law to submit the case to the jury.

Celie Johnson, a 46-year-old colored man, had been shot in the neck and promptly taken to the Methodist Hospital in Henderson about one o'clock in the morning of April 8, 1961. A nurse called Dr. Vaughn, a surgeon, to attend him, and the doctor arrived soon thereafter. His deposition, which had been taken for discovery, was read by the plaintiff. He therein testified that he found the man had a punctured trachea (windpipe, in layman's language) and a bullet lodged in the back of his neck, just above his shoulder. The patient was bloody, breathing with difficulty, vomiting, in 'borderline shock,' and in a critical condition. The testimony as to the time intervening the doctor's arrival and the removal of the man out of the emergency room to a ward room varies, but it was probably fifteen or twenty minutes. The doctor and an orderly undressed him and put him to bed.

Johnson's son James had taken him to the hospital in an ambulance and remained there throughout the night. He and George Swope, another patient in the same room, testified that Dr. Vaughn was in the room only once. George Mays and his wife were at the hospital all night because of having a very sick child there. They were near the emergency room and the ward. Both testified that they did not see the doctor go in or out of the ward room after the wounded man was taken in. These three witnesses and Swope described Dr. Vaughn's condition and actions as that he was 'red-eyed,' 'stumbled,' 'wobbled,' 'staggered,' 'talked rough' and was 'thick tongued.' The son smelled the odor of alcohol on the doctor's breath and expressed the view 'he had been drinking.' Objections were sustained to questions asked the other witnesses as to their opinion regarding the doctor's being intoxicated. This was error. Howard v. Kentucky Alcoholic Beverage Control Board, 294 Ky. 429, 172 S.W.2d 46. By avowals the witnesses stated the doctor seemed to be under the influence of liquor. It is fair to say that the hospital attendants who were asked about it testified they saw no indication that the doctor had been drinking.

Dr. Vaughn's deposition contains testimony of his constant attendance and diligence in the care of the patient until 3:45 A.M., and that is borne out by the nurses' charts. One chart (Exhibit B) was made currently and another (Exhibit A), which is somewhat more detailed, was written up the following night. Its trustworthiness and competency are doubtful. Dr. Vaughn testified to having administered hypodermically anticoagulents and sedatives in the emergency room. The charts show that Johnson had been admitted to the hospital at 2:15 o'clock, which is not in accord with all the other evidence. They list in illegible writing three or four medications administered there, but apparently there is some contradiction between this record and the doctor's testimony.

In the course of the doctor's testimony as to the condition of the patient on his arrival, he stated that he realized that he had a serious emergency and that he wanted him kept quiet until he could get blood to combat shock. On the doctor's order, about three o'clock the hospital laboratory technician was called from his home to come and prepare for a blood transfusion. Dr. Vaughn testified he would not 'take a chance on slipping a tracheotomy tube into his trachea' until he got the blood to combat shock. He stated he was told before he left the hospital that it would be thirty or forty minutes until it would be ready. But according to the laboratory technician, the blood was ready and the equipment placed in the patient's room before Dr. Vaughn left. It was not used. Dr. W. P. Woods, a physician of experience, who resided in Evansville, testified that transfusion of blood has a tendency to prevent or 'help a person out of shock if they are in shock,' and, from the conditions described, this patient needed it promptly. In short, Dr. Woods' testimony was that good medical practice of a reasonably careful and prudent physician and surgeon in Henderson and similar communities required that under the conditions described there should have been a blood transfusion as soon as possible.

A 'tracheotomy set' was moved into the room, but Dr. Vaughn did not deem it necessary to use it, as the patient had then relaxed. This preparation was for the purpose of making an incision and inserting a tube in the windpipe, which would have prevented air from escaping through the small bullet hole into the body and causing emphysema and embolism. Dr. Vaughn testified, 'My idea was to put the tracheotomy tube in the hole that was already in the trachea.' There was professional evidence, however, that proper procedure required cutting the windpipe at a more suitable location in order to insert the tube, and that such operation should not have been delayed.

The foregoing describes in summary the conditions when Dr. Vaughn left for home about 3:45 o'clock to change his clothes, he having come to the hospital with his outer garments over his pajamas. He deposed he regarded the patient as improved and in a satisfactory condition. He told the hospital supervisor he was going and asked her to call him if the patient's condition became worse and he was needed. He stopped on the way home for coffee, and, apparently, there was a period of thirty minutes before he reached home.

Roy Johnson, another son of the patient, and George Swope, a patient in the same room, described the wounded man's struggles and difficulty in breathing at the time the doctor left and his getting worse. An orderly put side bars on the bed, and someone, unidentified, placed him in an oxygen tent. Dr. Kissinger, referred to below, testified, in substance, that where a patient's condition is serious and could change for the worse in a short time, a doctor should remain with him or arrange for another physician to attend the patient.

It does not appear that any effort was made to reach Dr. Vaughn at his home after he left the hospital. Instead, Roy Johnson had a nurse call Dr. Charles C. Kissinger. He arrived about four o'clock. The doctor described the man's serious condition. He was 'in shock,' and had 'bubbling blood within the bronchical tubes and coming out of his mouth' and 'subcutaneous emphysema,' which is air under the skin, and also in his neck and chest. The doctor said, 'I felt the man was dying at the time.'

When he had ordered the patient's removal to the emergency room, Dr. Kissinger learned that Dr. Vaughn had been in charge; and he advised the family that as a matter of professional ethics they would have to get the patient released to him by Dr. Vaughn. Dr. Kissinger described his dilemma; and while it appears that he gave such attention as appeared to be most urgent, he told the sons they should telephone Dr. Vaughn and get him to release the patient.

A nurse then called Dr. Vaughn at his home, and he asked to speak to Dr. Kissinger. The latter testified he told Dr. Vaughn the patient was dying and that something had to be done. Dr. Vaughn was irate and vulgar. He told Dr. Kissinger he was 'a louse' to steal his patient and then hung up the receiver. Roy Johnson then called Dr. Vaughn and asked him to release his father to Dr. Kissinger. The son's account of the conversation and Dr. Vaughn's abuse and raving covers more than two pages of the transcript. At the end, the doctor demanded at first that the sons pay him $25 and then $50 'right now' before he would release the patient. He finally agreed to wait until nine o'clock the next morning for his money. Thirty or forty minutes had elapsed.

An X-ray of the man was made by a technician some time during the night, the hour not being shown. Dr. Kissinger testified it had been taken before he arrived, but the X-ray technician's record showed he had ordered it. Dr. Kissinger, however, examined the X-ray films before starting to operate. Dr. Matthews, the hospital radiologist, exhibited the X-ray films in a view box and explained them to the court and jury. In short, they indicated the presence of 'a fairly large amount of air under the skin in the tissues, both the muscles and tendons and various other structures in the neck which would not normally be present.'

The patient was given blood and an anesthetic, and Dr. Kissinger began operating on him about five o'clock, trying, as he testified, to save the man's life. The operation was the only chance. He made an incision in the windpipe and put in a tube. The patient stopped breathing. His chest was opened and his heart massaged, but it did not respond. Johnson's death was caused by air escaping through the hole in his windpipe and getting into his blood, causing an embolism around his heart.

There is evidence that a perforated trachea is not necessarily fatal but that proper surgical practice and treatment of such a wound, in accordance with usual surgical procedure and carefulness, required more than was done by Dr. Vaughn. With proper treatment and attention, according to the professional witnesses, the jury could reasonably...