McClarin v. Grenzfelder

• Decision Date: 22 March 1910
• Citation: 126 S.W. 817,147 Mo. App. 478
• Parties: McCLARIN v. GRENZFELDER.
• Court: Missouri Court of Appeals

126 S.W. 817

147 Mo. App. 478

McCLARIN v. GRENZFELDER.

St. Louis Court of Appeals. Missouri.

March 22, 1910.

1. PHYSICIANS AND SURGEONS (§ 18) — ACTIONS FOR NEGLIGENCE — JURY QUESTION — NEGLIGENCE.

In an action against a physician for negligence in treating plaintiff for hernia, whether defendant's method of treatment was improper held for the jury.

2. PHYSICIANS AND SURGEONS (§ 14) — CARE REQUIRED — SPECIALISTS.

A physician, holding himself out as a specialist in treating hernia, was bound to use that degree of care and skill possessed by hernia specialists in the city where he practiced, or in other cities following the same or more advanced methods of treatment, or by physicians making a special study and practice of the disease, so as to give them more skill and experience in treating it than possessed by general practitioners.

3. PHYSICIANS AND SURGEONS (§ 14) — DEGREE OF SKILL REQUIRED — FOLLOWING RECOGNIZED SYSTEMS OF TREATMENT.

In determining whether proper skill and care were employed by a physician in treating a particular disease, contemporary knowledge of the disease and the manner of relieving it are considered; and, if the method of treatment is recognized as proper by the expert practitioners of the physician's school, he is not negligent if he followed the course he deemed most suitable in the particular case, though there were other recognized systems of treating the disease, and that the method of treatment was comparatively new would not, of itself, make it an experiment so as to make the physician liable for injuries resulting therefrom.

4. TRIAL (§ 252) — INSTRUCTIONS — CONFORMITY TO EVIDENCE.

Where, in an action against a physician for damages for negligent treatment, there is no proof of permanent injury, the charge on the measure of damages should not submit that question.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Robert McClarin against Max Grenzfelder. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Defendant is a practicing physician in the city of St. Louis, graduate of the Marion Sims Medical College, adherent of the allopathic or regular school of medicine, and devoted especially to the treatment of hernia; a condition in which a portion of the bowel protrudes through an opening in the peritoneum or covering of the abdominal cavity. The hernia, some witnesses say, is due to the enlargement of a natural orifice in the abdominal wall, and the enlargement may be congenital, caused by heavy lifting, or in other ways. Defendant advertised in the newspapers as a specialist in the treatment of hernia, plaintiff read the advertisement, and as he had been suffering from hernia for some time, visited defendant to be treated. Plaintiff was employed at the time as a workman in a large wholesale hardware establishment in St. Louis, and did much lifting. He said he was in good health and strong when he first called on defendant December 30, 1906. Defendant then examined him, and said he (defendant) could cure plaintiff in 30 minutes, and without causing plaintiff to lose time from work. No treatment was administered at the first visit, but plaintiff was told to come back on January 6th, and he would be treated, on which day he returned, and defendant injected into his right groin over the hernia some aseptic paraffin. The theory of the practice was that this paraffin, after it was injected into the middle of the muscle outside the abdominal cavity and the peritoneum, would form into a compact mass over the hernia, and close, and hold closed, the orifice in the peritoneum so the bowel could no longer protrude, or possibly hold the bowel in place until the orifice had contracted enough to prevent protrusion. This treatment was administered to plaintiff on January 6th, and he was pronounced cured, but says he suffered great pain at the time, and continued to suffer pain from then on until he was operated on for peritonitis four or five months later in the City Hospital. Plaintiff visited defendant several times after the operation, perhaps every Sunday until he was taken to the hospital, said he complained each visit of his suffering and of a lump in the groin where the syringe had been inserted, but received no attention from defendant other than advice to wear an old suspender across the groin as a truss, which he did without obtaining relief; that defendant declared at every visit he (plaintiff) was cured, and was getting along all right. There is little difference between the testimonies of plaintiff and defendant. The latter said plaintiff's frequent visits after the operation were to pay installments of the fee due defendant, that he did not advise the wearing of a suspender, but of a truss, that plaintiff was cured by the operation, and never complained at any subsequent visit until the last one, when he called defendant's attention to a small protuberance or swelling of the groin which was of no consequence, and defendant told plaintiff he would open it on plaintiff's next visit, but there was no other visit. From the latter part of March to the end of April plaintiff was able to work only from three to five days a week, he said, and by May was unable to work any, had to take to his bed, and the waxy fluid had moved around to the outside of his stomach. He called a physician, Dr. Fuchs, who prescribed a powder to relieve pain.

Plaintiff was taken to the City Hospital on May 7th. On his arrival there he was found to be suffering from peritonitis, or inflammation of the peritoneum, and was immediately operated upon. He was then emaciated; was vomiting a dark brown fluid; his abdomen was distended; and there was a partial obstruction of the bowel, due to the adhesion of the intestines to the wall of the abdomen on the right side, so as almost to prevent the passage of fecal matter. This was strangulation of the bowels, and not strangulated hernia. Plaintiff was cut open a little below the hernia which existed at the time; black spots as large as a finger tip were found on the bowels, and the physician who performed the operation, Dr. G. W. Shanklin, testified he discovered on May 7th, near the hernia, a mass of paraffin the size of a pigeon's egg, but did not know what it was, nor did he interfere with it then, because he was intent on relieving the peritonitis. Plaintiff recovered from that disease completely, and on June 6th Dr. Shanklin operated on him for hernia. The operation consisted of cutting into the belly by the side of the hernia, placing the hernia sack back in its natural position and closing the orifice it had protruded from. During the second operation the surgeon examined the lump in plaintiff's groin, found the tissues matted together, and small particles of paraffin scattered through the tissues, most of it being in the muscles; it having gone through the muscle covering to some extent, but not into the peritoneum. This expert testified there were many causes for peritonitis, such as a blow on the abdomen or the extension of inflammation from the appendix where inflammation may be set up by germs or particles of food lodging; that a foreign object in contact with the peritoneum inflames it, and the inflammation in plaintiff's peritoneum might have occurred from the paraffin. "It was in a position where inflammation might have occurred from the contact of the paraffin with the peritoneum."

This question and answer are in the witness' testimony: "Q. Now, Doctor, if the paraffin pressing against the peritoneum caused the peritonitis, you cut in there at this first operation and did not remove the cause — that is, the inflammation resulting from the pressure of the paraffin — how came you to say that the paraffin was the cause if he got well? A. I didn't say that was the cause." He said the acute condition of plaintiff, found when he first operated, might have been caused by the paraffin or by something else; that the paraffin was there in evidence, and the appendix was not diseased. He also said he had heard of the employment of the method of treatment used by defendant to reduce hernia, but was not familiar with it, and it was not the usual or ordinary method of treating hernia. At the second operation Dr. Shanklin found the hernia orifice unclosed, and part of the bowel down, which might have caused...