Mason, Evans & Keys v. Meloan

• Decision Date: 18 June 1915
• Citation: 165 Ky. 582,177 S.W. 435
• Parties: MASON, EVANS & KEYS v. MELOAN (TWO CASES).
• Court: Kentucky Court of Appeals

177 S.W. 435

165 Ky. 582

MASON, EVANS & KEYS v. MELOAN (TWO CASES).

Court of Appeals of Kentucky.

June 18, 1915

Appeals from Circuit Court, McCracken County.

Action by Julia Meloan against Mason, Evans & Keys, and petition by Mason, Evans & Keys against Julia Meloan for a new trial of the first action. From a judgment for plaintiff in the first action and a judgment dismissing the petition for new trial Mason, Evans & Keys appeal. Judgment for the plaintiff in the first action affirmed, and judgment dismissing the petition for new trial reversed, with directions.

Berry &amp Grassham, of Paducah, and Stanfield & Stanfield, of Mayfield for appellants.

Hendrick & Nichols, of Paducah, for appellee.

CARROLL J.

The appellee, Julia Meloan, in a suit to recover damages for the alleged malpractice of the appellants, Mason, Evans & Keys who are physicians and surgeons, recovered a judgment for $3,500, and one of these appeals is prosecuted to obtain a reversal of that judgment. After the judgment was obtained in the lower court, the appellants brought an independent suit seeking a new trial of the case in which judgment was rendered, and when this suit for a new trial came on to be heard, the lower court dismissed the petition, and from that judgment an appeal in the other case now before us is prosecuted.

The appellants, who are physicians and surgeons at Murray, had established there a hospital for the care and treatment of patients under their charge. On May 27, 1912, these surgeons attempted to remove from the neck of the appellee a goiter, but on account of conditions that will be later described, were unable to complete the operation, and as a result the goiter was not removed. After this, and in December, 1913, the appellee brought this suit against them, charging that, although they solicited that she submit to the operation at their hands, they were not skillful or competent surgeons, and that when they performed, or rather attempted to perform, the operation, they did it in such a careless manner as to cause her great pain and suffering, and to leave her in a worse condition than she was before the operation was attempted. She further charged in her petition that, in the attempt to perform the operation, they made an incision for the purpose of removing the goiter, and upon their failure to remove it, packed the incision with gauze or some other substance, and negligently failed to remove a portion of the packing, which was left in the incision for a period of some 15 days, when she discovered its presence and had it removed; that by their negligence in failing to perform successfully the operation undertaken by them, and in failing to remove in proper time and manner the packing, and in failing to treat the wound made by the incision as it should have been, a running sore was created that caused her a great deal of annoyance and pain, and subjected her to much trouble and expense. The answer put in issue the averments of the petition, and further pleaded that the failure of the incision to heal was due to the fact that the appellee did not observe their directions or requests, and by her own conduct produced the condition of which she complained.

The appellee testified, in substance, that while she was at Murray in the fall of 1911 Dr. Mason called at her house, and in the course of a conversation about the goiter, told her that it ought to be operated on, and would be a very simple operation; that afterwards, in May, 1912, she concluded to have the operation performed, and went from her home in Livingston county to Murray and saw the doctors one night and on the next morning the operation was performed; that after the operation was over, she remained at the hospital about 10 days, and that the last of the gauze packing that had been put in the incision was not removed until about 10 days or two weeks after the operation was performed; that when this gauze was taken out the wound was giving out pus, and the gauze emitting an offensive odor. She further testified that from the time she left Murray, about two weeks after the operation was over, she saw the doctors at intervals, and they cauterized the wound and treated it in other ways, but it did not improve, and at the time of the trial in March, 1914, the wound made had not healed, and it was emitting pus and other matter, and she suffered continuously from pain produced by it.

Dr. Duley, testifying in behalf of appellee, said if gauze or packing was permitted to stay in a wound too long, it would cause an infection to set up that would prevent the wound from healing.

There was other evidence in behalf of appellee to the effect that the appellants, when they undertook the operation, thought it would be quite a simple one, and did not anticipate the trouble they encountered, and also evidence conducing to show that the wound was not treated properly after the operation.

The evidence for the appellants showed that they were regarded as competent, skillful surgeons in the community in which they lived and operated, and it appears from their testimony that when they made an incision about half an inch deep for the purpose of removing the goiter, they came in contact with a large vein that it was necessary to ligate in order to enable them to take out the goiter; that when they attempted to stop the flow of blood in this vein it was discovered to be in such a friable condition that it could not be ligated or closed by the usual methods, and so it became necessary to discontinue the operation and stop the flow of blood in this vein by putting pressure on it through packing inserted into the incision that had been made; that if the flow had not been stopped by this packing, the patient would have died from loss of blood; that the condition of this vein could not have been known until it was reached in the course of the operation, and that when this condition was discovered, there was nothing else to do except what they did; that the packing was permitted to remain for a few days and finally all of it taken out except one piece, which was permitted to remain for several days longer, until it was regarded as safe to remove it. There was further evidence in their behalf to the effect that appellee left the hospital over their protest too soon, and when she went to her home in Livingston county did not come back to have the wound treated as often as she should, and that on account of her failure to remain in the hospital or to return when she should for treatment, the wound did not receive proper treatment, and these causes prevented it from healing as it would have healed if proper treatment had been given it.

Restating it briefly, according to the evidence for the appellee, the...