Kirchner v. Dorsey & Dorsey

• Decision Date: 14 February 1939
• Docket Number: 44430.
• Parties: KIRCHNER v. DORSEY & DORSEY et al.
• Court: Iowa Supreme Court

284 N.W. 171

226 Iowa 283

KIRCHNER v. DORSEY & DORSEY et al.

No. 44430.

Supreme Court of Iowa.

February 14, 1939

Appeal from District Court, Lee County; John M. Rankin, Judge.

Action at law for malpractice, against defendants, who are licensed physicians and surgeons in the State of Iowa. Defense consisted of a general denial. There was a trial to a jury which returned a verdict for the plaintiff. Defendants have appealed. Opinion states the facts.

Affirmed.

Plaintiff must prove not only negligence, but also causal connection with injury.

J. O Boyd, of Keokuk, and Dutcher, Ries & Dutcher, of Iowa City for appellants.

Hollingsworth & Hollingsworth, Keokuk, and Rendlen, White & Rendlen, of Hannibal, Mo., for appellee.

MITCHELL, Chief Justice.

Opal Kirchner, wife of a Baptist minister, living in northern Missouri, in 1934 was twenty-one years of age, and the mother of one child. She was suffering from a retroverted uterus, an eroded and encysted cervix, appendicitis, and dysmenorrhea. She consulted Dr. Grace Gray, an osteopathic physician of Kahoka, Missouri, and together they consulted Dr. George Laughlin, an osteopathic surgeon at Kirksville, Missouri. On the 16th day of February Mrs. Kirchner, her husband, and Dr. Gray, traveled to Keokuk, Iowa, and there consulted Drs. Dorsey and Dorsey, who are practicing physicians and surgeons in that city, men of training and experience in their profession. Drs. Dorsey and Dorsey diagnosed Mrs. Kirchner's ailments as above set out, and recommended that she have an operation. She was taken to the Graham Hospital in Keokuk, and on the next day the operation was performed by them.

The operation consisted of conization of the cervix, which was performed by means of a radio frequency knife in which the cutting is done by an electric current, of varying intensity, depending upon a rheostat that may be controlled by the operator by a switch. Following this the abdomen was opened, and suspension of the uterus and an appendectomy were performed. Dr. F. B. Dorsey, Jr., did the actual operation, assisted by his father, Dr. F. B. Dorsey, Sr.

The uterus is a pear-shaped organ in the female anatomy, and the lower portion thereof is the cervix and contains the cervical canal. The cervix extends into the vagina and is the passageway thru which menstruation takes place. Conization of the cervix consists of removing a conical shaped portion at the lower end of the cervix, which is known as the lower or external os.

After the removal of the cone, the cervix was packed with iodoform gauze and the abdomen opened for the suspension of the uterus and the appendectomy. The operation was performed under a general anesthetic.

From the record it is evident that in a coning operation of the kind performed upon Mrs. Kirchner, a raw surface is left around the walls of the cervical canal and if nothing is done to prevent them coming in contact they will grow together and occlude or close this canal. The evidence shows that in this case all that was done to keep open this canal was to place gauze in same. However, the gauze was removed a day or two later and nothing thereafter was done to prevent occlusion.

From the date of the operation on February 17th until the time that plaintiff left the hospital, nineteen days later, the jury could have found from the evidence that, with the exception of the removal of the gauze, there was no examination of the cervix, no treatment of the wound, and nothing was done to hold apart the raw surfaces. There was no examination of the condition of the cervix, by either of the defendants, at the time that plaintiff was told she could leave the hospital.

In April, May and June she had intense periods of suffering, and on the 24th day of June she applied to Drs. Dorsey and Dorsey for relief, again being accompanied by her local doctor. At that time the cervical canal was opened with dilators. A dilator is an instrument used by medical men in forcing an opening into the cervical canal. No anesthetic was given. Plaintiff was in the hospital twenty-four hours at that time. Again in July and August she suffered cramps, with great intensity and severity in length of time. She returned, on August 11th, to the offices of Drs. Dorsey and Dorsey and appealed for help. At that time the cervix was grown over with the same sort of scar tissue as before. Again the cervical canal was opened with a dilator, without the use of an anesthetic. No other treatment was given and no precaution taken to prevent occlusion. Upon returning home from this treatment her local doctor, Dr. Gray, for the purpose of keeping open the cervical canal, placed in the canal a pessary. However, by November 6th this had come out and plaintiff again suffered great pain during September, October and November. On the 25th day of November she returned to Drs. Dorsey and Dorsey for treatment. Again it was suggested that she go to the hospital for the purpose of opening up the cervix more. Plaintiff said she could not stand the pain, and returned home. Early in December of 1934 she went to Dr. George Laughlin, a surgeon living at Kirksville, Mo., who attempted to establish an opening in the cervical canal but was unsuccessful. He then opened the abdomen and removed the uterus.

Mrs. Kirchner in 1936 commenced this action to recover damages against the defendants in the amount of $30,000. There was a trial to a jury, in which a great volume of evidence was submitted. The jury returned a verdict in the amount of $7,500. The defendants, being dissatisfied, have appealed.

I.

It is claimed that the court erred in holding that appellee's petition was sufficient to allege a cause of action.

The petition was attacked by a motion for more specific statement. The record shows that upon a submission of this motion certain parts of it were sustained and certain parts were overruled. That, to meet the requirements of the ruling on the motion, the appellee filed an amendment to her petition, and thereafter the appellants filed answer.

In Crow v. Casady, 191 Iowa 1357, at page 1359, 182 N.W. 884, at page 885, this court said: " After these several motions had been filed and ruled on, the appellant filed an answer, and went to trial. This constituted a waiver of any error that might have been committed in the rulings on the several motions, and we cannot now consider the alleged errors in such rulings."

So in the case at bar, the filing of an answer waived the defect in the motion for a more specific statement.

This same question was again raised on the motion in arrest of judgment, which was overruled by the court. The only question which is raised by a motion in arrest is whether the petition wholly fails to state a cause of action, not whether the petition should have been made more specific.

Apropos to the principle relied upon by the appellants, Justice Morling, speaking for this court, in the case of Pomerantz v. Pennsylvania-Dixie Cement Corp., 212 Iowa 1007, at page 1010, 237 N.W. 443, at page 444 said: " Whether or not a motion for more specific statement would lie is a question not before us. * * * The facts out of which plaintiff's injury arose were set out. The petition contained a general averment of negligence. It was good as against general demurrer or motion in arrest."

With this rule of law in mind, let us look at the petition in this case:

It avers that the appellants are duly licensed surgeons and they advised appellee that a surgical operation upon her was necessary, and appellee submitted thereto; appellants undertook to operate upon her and treat her. It thus avers the duty arising on the part of the appellants. It then avers that the appellants were negligent, careless, and performed the operation in an unskillful manner; that they " negligently, carelessly and unskillfully injured the appellee's uterus, its tissues and lining and parts thereof so that the openings, passages and canals thereof adhered and grew together and their functions were injured and destroyed." Further, that because of appellants' said negligence appellee was made sick and suffered great pain, and it was necessary to have the appellee's uterus entirely removed, by means of which she was rendered sterile; that all of this was the proximate and direct result of the carelessness, negligence, and grossly unskillful manner in which appellants performed said operation and cared or failed to care for appellee therein and thereafter.

As in the cited case, the facts out of which appellee's injuries arose were set up. There was a general averment of negligence, and it was good as against a motion in arrest.

II.

It is the claim of appellants that the court erred in overruling appellants' motion for directed verdict, made at the close of the evidence, particularly upon the ground that " the evidence wholly failed to show the defendants' negligence, if any, was the proximate cause of plaintiff's injury and damage."

It is elementary that in actions for negligence the plaintiff has the burden, not only of proving negligence, but of proving that the negligence of the defendants was the proximate cause of the plaintiff's injury and damage. And in considering a motion to direct a verdict the evidence must be considered in its most favorable light to the party adverse to the motion.

There is no question in this record that there is a dispute as to whether the appellants used the approved method in the operation performed. It is true, the appellants attack the evidence of a medical man because of the fact that he lived in Fort Madison, Iowa, a short distance from Keokuk, and this will be taken up later in the opinion.

The operation was performed by appellants. Some months later it was necessary to force an opening into...