Lewis v. McClellan

• Decision Date: 10 January 1928
• Docket Number: No. 19965.,19965.
• Citation: 1 S.W.2d 247
• Parties: LEWIS v. McCLELLAN.
• Court: Missouri Court of Appeals

1 S.W.2d 247

LEWIS v. McCLELLAN.

No. 19965.

St. Louis Court of Appeals. Missouri.

January 10, 1928.

As Modified January 17, 1928.

Rehearing Denied January 24, 1928.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by Thelma M. Lewis against John W. McClellan. Judgment for plaintiff, and defendant appeals. Affirmed.

Daniel W. Bowles, of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

BENNICK, C.

This is an action for alleged malpractice, brought by plaintiff against defendant, a physician and surgeon engaged in the practice of his profession in the city of St. Louis. The verdict of the jury was for plaintiff in the sum of $2,750, and from the judgment rendered in conformity therewith defendant has duly appealed.

Suffice it to say of the pleadings that the petition counted upon certain allegations of negligent diagnosis and treatment of plaintiff's ailment by defendant in his professional capacity, which were duly put in issue by the answer filed, in the form of a general denial.

The parties to this proceeding are colored people. Plaintiff is a young woman, now 24 years of age, while defendant, as we have indicated above, is a physician and surgeon, having a large practice among the members of his own race, including the Lewis family, for whom he had been family physician for a number of years.

The evidence offered on behalf of the respective parties is in all material respects absolutely irreconcilable. That for plaintiff discloses that in September, 1918, when plaintiff was only 15 years of age, she suffered an attack of influenza, from which she recovered, although the inference is that she was left in a weakened condition. During the following November, while in attendance at school, she had the misfortune to fall down a flight of stairs, striking upon her back and hips, and experiencing pain in that region.

In the spring of 1919, defendant was called to treat plaintiff for a very severe pain in her lower back and hips, of which she was complaining. At the time of his visit, plaintiff's mother informed him of the fall her daughter had received, and inquired whether the condition which existed might be due to that accident, to which query defendant replied in the negative, advising that plaintiff was suffering from rheumatism, and prescribing a course of treatment therefor, which was continued by him during the next several months. It appears, however, that plaintiff obtained only temporary relief from her pain, and that in the spring of 1920, her condition had grown so bad that she lost twenty-six pounds in weight in a period of two months. During the following summer, at defendant's suggestion, she went to a Y. W. C. A. camp, so that she might receive the benefits of outdoor exercise and fresh air.

In November, 1920, an abscess formed in plaintiff's right side, upon the appearance of which her mother again took her to defendant's office for an examination. Immediately upon becoming aware of the turn plaintiff's condition had taken, defendant rushed her to the People's Hospital and opened and drained the abscess. Plaintiff remained in the hospital for two weeks, and was then removed to her home, where she was cared for by a private nurse for an additional period of two weeks, and thereafter by her mother. The wound produced by the incision made by defendant remained open for two years and nine months.

Defendant continued his treatments until February, 1921, when he gave up the case and suggested that plaintiff be taken to a hospital. She was thereupon removed to Barnes Hospital, where she remained for one week, during which time X-ray pictures and blood tests were made. In the summer of 1924, pus again began to discharge from the old wound, in consequence of which she was taken to the dispensary of Barnes Hospital for examination and the making of additional X-ray pictures. The wound formed on this occasion remained open for three months.

According to plaintiff's version of the facts, the first manual examination made by defendant of her back and hips was in November, 1920, after the abscess had formed, although he had been treating her for the pain in this region of her body since the spring of 1919 It was also shown that defendant at no time put plaintiff in a cast or frame, or, in fact, made any attempt to immobilize her body by the use of any sort of wrapping or device. It appears that the first suggestion to the family that a frame should be employed came from Dr. Klinefelter, who was consulted after defendant had terminated his services, although the frame recommended and sent to plaintiff's home by him was returned, and an invalid's chair was purchased and used instead.

The expert evidence introduced for plaintiff disclosed that her ailment was properly diagnosed as tuberculosis of the spine, commonly known as Pott's disease, with a destructive process present in the fifth lumbar vertebra, and a similar involvement of the fourth, resulting in a permanent curvature of the spine in the lumbar region, with an accompanying rigidity and limitation of movement. It was also shown, in substance, that pain in the back is one of the first symptoms of the disease; that infection might well precede demonstrable destruction of bone by a period of as much as two years; that a pus sac would form only at an advanced stage of the disease; that the usual and customary method of treatment was the immobilization of the back upon the first appearance of pain, and the employment thereafter of hygienic measures designed to afford fresh air and a proper diet; and that, if the above mode of treatment is followed upon the first manifestation of the disease, the patient will in all probability make a complete recovery, within six or eight months, without the formation of any abscess, the destruction of bone, or curvature of the spine.

Briefly, the evidence for defendant tended to show that he was not called in the case until in November, 1920, after the abscess had formed; that he operated on plaintiff in a skillful manner; that the progress made by her towards recovery was as favorable as could be expected in cases of tuberculosis of the spine; and that his employment ended when he was not further called, and when the parents reported that plaintiff was well on the way to recovery. He testified most positively (in which statement he was corroborated by the other physicians in attendance, as well as by the nurses in the case) that, after the operation, he immobilized plaintiff's back by means of sandbags, and that he advised the use of a plaster cast, which was the only apparatus within the financial means of plaintiff's family, but that they objected to it, and refused to use it.

In view of the unfortunate turn thus taken by the testimony in the case, it perhaps should be added, in fairness to defendant, that plaintiff's experts admitted that, considering the advanced stage which the disease had reached at the time the operation was performed, the result obtained was good, with a minimum of bad effects.

Defendant first argues that no case was made for the jury, and that his requested peremptory instruction in the nature of a demurrer to all the evidence should have been given. In the determination of the propriety of the lower court's ruling, it must be borne in mind that plaintiff pleaded and relied upon two theories of negligence: First, that at the inception of the relationship of physician and patient, defendant negligently failed to make a proper and sufficient examination of plaintiff so as to ascertain the true condition from which she was suffering; and, second, that he negligently failed to immobilize her body.

Stated in the abstract, it was unquestionably the duty of defendant, when he undertook to treat plaintiff in the spring of 1919, to use reasonable knowledge and care in learning the condition of his patient, in making a diagnosis of the case, and in thereafter employing such remedial measures as were universally recognized by the medical profession as proper under the circumstances. In other words, it was incumbent upon defendant to give heed to the symptoms present when plaintiff became his patient, and to make such examination of her and prescribe such method of treatment for her as would have commended themselves to a practitioner of ordinary skill and learning.

There was evidence that, when plaintiff's services were first obtained, plaintiff was complaining of a very severe pain in the region of her lower back; that the same was a symptom of tuberculosis of the spine, and certainly so, inasmuch as the pain was constant; that the presence of the disease could have been detected immediately by removing the clothing from plaintiff, placing her upon a table, noting any bulging or curvature of the spine, and manipulating with the hands so as to elicit pain and determine irregularity in the spinal column; and that the settled and uniform treatment for such ailment was the immobilization of the patient's back upon the first appearance of pain or rigidity. The evidence for plaintiff disclosed, however, that defendant made no manual examination of his patient until in November, 1920, after the abscess had formed, and that he did not immobilize her back, or advise such procedure, when he learned of the presence of pain in the affected area, or for that matter, even after the operation had been performed....