Jordan v. Skinner
| Decision Date | 15 September 1936 |
| Docket Number | 26204. |
| Citation | 187 Wash. 617,60 P.2d 697 |
| Parties | JORDAN v. SKINNER et ux. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.
Action by Patricia Mylbra Jordan by her guardian, Melvin R. Jordan against H. H. Skinner and wife. Judgment for defendants, and plaintiff appeals.
Reversed and remanded.
E. L Bennett and Charles F. Bolin, both of Toppenish, for appellant.
Grady & Velikanje and Stanley P. Velikanje, all of Yakima, for respondents.
Cheney & Hutcheson, of Yakima, amici curiae.
Patricia Mylbra Jordan was born January 25, 1931, at a hospital in Yakima. Prior to her birth, the defendant H. H. Skinner, a physician, was employed to attend at the accouchement. Four days after the child's birth, she developed an infection of the eyes, which resulted in total blindness of the right and 50 to 75 per cent. impairment of vision in the left. This action was brought, charging that the infection and its result was caused by negligence on the part of defendant in caring for the child at and after birth. The defendants answered, denying negligence. Trial was had to a jury, which disagreed. Thereafter the defendants interposed a motion for judgment on the ground that the evidence received at the trial was insufficient to sustain a verdict for plaintiff. (Precedent for this procedure is to be found in Fobes Supply Co. v. Kendrick, 88 Wash. 284, 152 P. 1028.) The court granted the motion, and entered judgment dismissing the action, from which plaintiff appeals.
The sole question to be determined is whether there was substantial evidence in support of any of the charges of negligence. In determining the question, we, of course, must consider the evidence in the light most favorable to appellant. From the evidence, the jury might have found the following facts:
Ophthalmia neonatorum is an infection in the eyes of the newborn. Although the term may be applied to any infection, it is generally accepted as indicating the presence of gonococci. As a precautionary measure, the state health regulations require that at birth a solution of silver nitrate or argyrol shall be dropped into the eyes of an infant. This is also standard practice in the absence of state regulation. (Under the state health regulations, this is regarded as a specific against gonorrheal infection.) Where the prophylactic is used, ophthalmia neonatorum develops in only one case in a thousand; where it is not used, the infection develops in 10 per cent. of the cases. In the case of appellant, the prophylactic was not used. In the afternoon of the third day the mother noticed that the eyelashes of the baby's left eye were covered with matter and stuck together. The next day she spoke of the condition to respondent, who told her he would take care of the child's eyes; that he thought the condition was the result of a cold. The condition, however, gradually grew worse, the purulent discharge increasing day by day. On February 4th, the mother and child left the hospital. On leaving the hospital, the mother was advised by a nurse to put one drop of 5 per cent. argyrol in the baby's eyes twice a day, and wash them every three hours with a solution of boric acid. On February 6th, the right eye became affected. On the seventh, the purulent discharge was streaked with blood. From then on, the discharge increased and the eyes became more badly inflamed, until Saturday, February 14th, when respondent advised the parents to take the child to Doctor Bline, an eye specialist. (Doctor Bline was in partnership with respondent.) They attempted to get in touch with Doctor Bline that day, but were told the doctor could not see them until Monday. On Monday, the 16th Doctor Bline saw the child. He took a smear of the pus, upon which he got a laboratory report to the effect that there were no gonococci present. A few days later, another smear showed the same result. (The fact that the laboratory report on the smears is negative does not eliminate a diagnosis of gonorrheal infection, if a clinical examination indicates the contrary.) He diagnosed the condition as conjunctivitis, and attributed it to closure of the nasal ducts. By February 21st, ulcers had formed on the cornea. Doctor Bline continued to treat the child until the following August.
Prior to telling the parents to take the child to Doctor Bline, respondent made no suggestions as to the treatment of the baby's eyes. He did say that the condition was nothing to worry about. On being asked if too much argyrol could be put in the eyes, he said, 'No.'
There was no direct testimony that the child was suffering from a gonorrheal infection. A...
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