Loudon v. Scott

• Decision Date: 13 December 1920
• Docket Number: 4232.
• Citation: 194 P. 488,58 Mont. 645
• Parties: LOUDON ET AL. v. SCOTT ET AL.
• Court: Montana Supreme Court

194 P. 488

58 Mont. 645

LOUDON ET AL. v. SCOTT ET AL.

No. 4232.

Supreme Court of Montana

December 13, 1920

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by Olive Loudon and Rachael Loudon, a minor, by Olive Loudon her guardian ad litem, against Drs. M. J. Scott and Frederick J. Langdon. From a judgment for defendants, and an order denying a new trial, plaintiffs appeal; Dr. M. J. Scott being sole respondent. Affirmed.

J. O Davies, of Butte, for appellants.

Kremer Sanders & Kremer and Walker & Walker, all of Butte, for respondent.

HOLLOWAY J.

On July 18, 1914, Dr. M. J. Scott caused an anæsthetic to be administered to Charles Loudon, preparatary to performing a surgical operation. Loudon died from the effects of the anæsthetic before the operation was commenced, and this action was thereafter instituted to recover damages for malpractice. Issues were joined and the cause was brought to trial. At the close of plaintiffs' case the court granted a nonsuit, and ordered judgment dismissing the complaint. From that judgment, and from an order denying a new trial, plaintiffs appealed.

The surgeon is charged with negligence (1) in causing the anæsthetic to be administered at the particular time, when the patient was in an unfit physical condition, and (2) in the manner in which it was administered; but there was not any attempt made to prove the second charge, and we may presume that it was abandoned.

Mrs. Loudon testified that a few days after Loudon's death she went to Dr. Scott to procure a certificate of death to be used by her in the settlement of some insurance claim, and that Dr. Scott then told her that death was not caused by the injury which Loudon had received on June 4, but was produced by the shock of the anæsthetic administered while Loudon was "in an intoxicated condition and suffering from acute alcoholism"; that she asked him why he gave Loudon the anæsthetic while he was in that condition, and he replied that he knew it was dangerous, but that Loudon was a strong, healthy man, and he thought he could stand it. Mrs. Loudon also testified:

"My husband was a strong, healthy man, being 5 feet 11 inches tall, and weighed about 175 pounds; his normal weight being about 200, 210, or 214, something like that. * * * I don't know anything about Mr. Loudon drinking for the last three weeks before his death; I never saw him drunk. * * * Prior to the time Mr. Loudon received this injury, he was a sober man, and worked daytime; worked steadily; didn't lose any time."

A witness, Connors, testified he was with Loudon on the afternoon of July 17; that Loudon was then "under the influence of liquor." This was immediately before Loudon went to the hospital.

In addition to the foregoing, there was introduced, on behalf of the plaintiffs, the testimony which Dr. Scott had given upon the trial of two other cases, which testimony may be summarized briefly as follows: On June 4, 1914, Charles Loudon was taken to St. James Hospital suffering from a cominuted fracture of both bones of the right forearm, sustained while working in one of the mines in Butte. Dr. Scott took charge of the case, applied temporary bandages and dressings, and later had an X-ray picture taken, and determined that a surgical operation would be necessary as soon as the swelling in the arm receded and the soreness disappeared sufficiently to admit of it, which would require from three to four weeks. Loudon returned to the hospital frequently to have the dressing changed, and at the expiration of about four weeks Dr. Scott observed that he was indulging in intoxicating liquors to excess and admonished him to desist, which he promised to do, but did not do. An appointment was made for a definite time for the operation, but when the time arrived Loudon presented himself in an intoxicated condition, and was sent home with the warning that he must desist from the use of intoxicants in order that the operation might be performed and his arm saved from uselessness. Another appointment was made, but again Loudon appeared at the hospital intoxicated, and again he was sent home with the like admonition. Whether he was sent home a third time is not made certain. During the two or three weeks which intervened after Dr. Scott discovered that he was drinking to excess, Loudon had suffered from acute alcoholism, and did not stop the use of intoxicants until the afternoon of July 17, when he appeared at the hospital "more sober than he had been, but he showed the effects of drinking," and, accepting the advice of Dr. Scott, stayed there overnight during which time the doctor got him in as good condition as he could under the circumstances. The operation had been delayed then two or three weeks, solely on account of Loudon's intemperance. On the morning of July 18, Dr. Langdon and Dr. Murphy prepared the patient for Dr. Scott to operate upon, and to that end administered to him an anæsthetic. The doctors discovered presently that Loudon was not progressing favorably, and they undertook to restore him, but without avail. He had convulsions, with some of the characteristics of an alcoholic fit, and died within 20 minutes.

The operation which Dr. Scott was about to perform was necessary to prevent the arm becoming useless, and, in order to perform it, it was necessary that the patient be given an anæsthetic. The effect of Loudon's drinking was to weaken his heart action, lower his vitality, and make it much more dangerous to administer the anæsthetic to him. The cause of death was "the shock from the anæsthetic, plus his condition." If he had refrained from the use of intoxicants to excess, his chances of recovery would have been better, but he still would have had to take one chance in from 2,000 to 5,000, as every one does who takes an anæsthetic. Dr. Scott also testified:

"I had sole charge of Mr. Loudon. A doctor knows when it is safe to put a man on the operating table."

This is substantially an epitome of the evidence so far as it reflects upon the question of negligence.

Counsel for appellants in his brief makes the statement that Dr. Scott also testified that he could have placed Loudon in the hospital at any time he desired and removed the condition which caused his death. By this we presume that counsel contends that Dr. Scott testified that he could have kept Loudon in the hospital a sufficient length of time to remove the effects of his intemperance sufficiently to make the administration of the anæsthetic a safer operation. But the record, which is cited by counsel, does not justify the statement. It discloses that a question was propounded to Dr. Scott, evidently intended to elicit information of that character; that an objection was interposed and sustained, and this question was then asked and answered:

"Q. Why didn't you keep him in the hospital and take charge of the case until such time as the conditions were favorable for operating on him? A. We did have him in one time, and he wanted to go home, and there was no objection in his condition to his going home; there was nothing in his condition, in his injury or his condition, that would prevent his going home; he wanted to go home. As to his condition of intoxication when he came to the hospital, he was not what would be called paralyzed drunk. He had been drinking sufficiently that his breath showed very badly that he had been drinking; his face showed it; his face continued flush; and his talk showed it. He was a little bit unsteady, but not so that he couldn't walk. One could remove most of that condition probably in 24 hours."

Whether this statement relates to Loudon's visit to the hospital on July 17, to some prior visit, or to his visits generally during the last two or three weeks of his life, is left to conjecture.

It is the rule in this jurisdiction that a case should never be withdrawn from the jury unless it appears as a matter of law that a recovery cannot be had upon any view of the facts which the evidence reasonably tends to establish ( Stewart v. Stone & Webster Eng. Corp., 44 Mont. 160, 119 P. 568); but whenever there is not any evidence in support of plaintiff's case, or the evidence is so unsubstantial that the court would feel compelled to set aside a verdict, if one should be returned for plaintiff, a nonsuit should be granted (Escallier v. Great Northern Ry. Co. 46 Mont. 238, 127 P. 458, Ann. Cas. 1914B, 468). Does this evidence, viewed in the light most favorable to plaintiffs, reasonably tend to establish the negligence charged against Dr. Scott?

The consensual transaction from which arises the relation of physician and patient does not imply absolute liability. A physician is not an insurer, and a malpractice case does not...