Lydia M. Parker v. Windsor D. Bowen

• Decision Date: 07 October 1924
• Citation: Lydia M. Parker v. Windsor D. Bowen, 126 A. 522, 98 Vt. 115 (Vt. 1924)
• Parties: LYDIA M. PARKER v. WINDSOR D. BOWEN
• Court: Vermont Supreme Court

126 A. 522

98 Vt. 115

LYDIA M. PARKER v. WINDSOR D. BOWEN

Supreme Court of Vermont

October 7, 1924

May Term, 1924.

ACTION OF TORT for malpractice. Plea, general issue. Trial by jury at the April Term, 1923, Windham County, Moulton, J presiding. Special verdict, and general verdict for plaintiff, and judgment rendered thereon. The defendant excepted. The opinion states the case. Reversed and remanded.

Judgment reversed and cause remanded.

Warren R. Austin and Frank E. Barber for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

POWERS

The defendant, a practicing physician, had professional charge of the plaintiff following an operation which required the surgeon to open the abdominal cavity. Dr. Hazelton performed the operation, and it is admitted that, so far as this case is concerned, the defendant's responsibility did not begin until Dr. Hazelton turned the patient over to him after the operation had been performed. Gauze sponges were used during the operation to cleanse the wound, and when the plaintiff was turned over to the defendant, one or more cigarette drains, made of rolled gauze and gutta percha were left sticking out of the wound to take care of the drainage therefrom. The plaintiff claimed that there were two of these; the defendant insisted that there was only one. The sponges were supposed to have been removed before the abdominal cavity was closed; and the cigarette drains were to be removed during the course of the patient's convalescence. The plaintiff did not make a good recovery and it turned out that, without the fault or knowledge of the defendant, a sponge had been overlooked and left in the cavity at the time of the operation, and some fifteen weeks later this worked up to the surface and was removed. During the time this sponge was making its way out, the plaintiff languished and suffered. She brought this action for malpractice, alleging and claiming that one of the cigarette drains had been allowed to sink into the wound and disappear, and that it was the cause of her trouble, and that it was this drain that finally appeared and was removed. The action was originally brought against the defendant and his wife, Josephine Bowen, but was discontinued as to the latter, and went to trial against the defendant alone. The jury found by a special verdict that the object removed was a sponge, and brought in a general verdict for the plaintiff. When it appeared at the trial that the defendant claimed that this object was a sponge and not a cigarette drain, the plaintiff was allowed to amend her complaint so as to charge malpractice in not discovering the presence of a sponge in the wound, and in not sooner removing it. The defendant excepted.

In support of this exception it is urged that the new count sets up a new cause of action, which is not allowable, even under the Practice Act. While G. L. 1796 allows amendments in matters of substance, there is no provision thereof that warrants an amendment introducing a new cause of action. It was held in Carpenter v. Central Vt. Ry. Co., 93 Vt. 357, 367, 107 A. 569, that the statute did not change the rule and this has been repeatedly recognized since. Prouty v. Pellett, 96 Vt. 53, 117 A. 373; Powell v. Rockwell, 97 Vt. 528, 124 A. 567. In Schlitz v. Lowell Mut. Fire Ins. Co., 96 Vt. 337, 119 A. 513, the amendment was sustained, it being considered that the course of legislation indicated that the Legislature intended to cover the right to amend in cases like the one then in hand. The established rule is very familiar to bench and bar; it is thus stated: "The true test is whether the proposed amendment is a different matter or the same matter more fully or differently laid." The term "matter" as here used refers to the substantial facts which lie at the basis of the plaintiff's claim, and not those originally alleged. Thus in assumpsit, the foundation of the action is the debt which the plaintiff sets out to enforce, and so long as he sets up no new debt, he sets up no new cause of action. Dana v. McClure, 39 Vt. 197. So in trover, a new count may be added for other property converted at the same time, without offending the rule, Haskins v. Ferris, 23 Vt. 673; in a fire case against a railroad company a declaration alleging that the fire was caused by the mishandling of the defendant's engine, may be amended by adding a count alleging that the fire was caused by a defective engine, Chaffee v. Rutland R. R. Co., 71 Vt. 384, 45 A. 750; and a declaration alleging alienation by enticement may be amended by adding a count for alienation by crim. con. Daley v. Gates, 65 Vt. 591, 27 A. 193. "As long as the plaintiff adheres to the contract or the injury originally declared upon," says Rowell, J., in the case last cited, "an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action."

Applying this rule to the case in hand, it becomes very apparent that this amendment was properly allowed. The basis of the plaintiff's claim throughout is the defendant's failure to discharge his professional duty in caring for her as his patient. The plaintiff by the amendment has not changed the basis of her claim; she adheres to the "injury originally declared upon," and alters only "the modes in which the defendant * * * caused the injury." The defendant takes nothing by this exception. The court charged...