McKinnon v. Polk

• Citation: 121 So. 539,219 Ala. 167
• Decision Date: 04 April 1929
• Docket Number: 6 Div. 321.
• Parties: MCKINNON v. POLK.
• Court: Supreme Court of Alabama

121 So. 539

219 Ala. 167

MCKINNON v. POLK.

6 Div. 321.

Supreme Court of Alabama

April 4, 1929

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for malpractice by Bessie B. Polk against H. A. McKinnon. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Fort Beddow & Ray, of Birmingham, for appellant.

Hugh A Locke, of Birmingham, for appellee.

THOMAS J.

The suit is for personal injury alleged to have been negligently caused by the treatment of plaintiff's physician. The rules given application to such action need not be repeated. Robinson v. Crotwell, 175 Ala. 197, 57 So. 23; Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Knowles v. Blue, 209 Ala. 27, 95 So. 481; Knowles v. Dark & Boswell, 211 Ala. 59, 99 So. 312; Moore v. Smith, 215 Ala. 595, 111 So. 918; Peck v. Henderson (Ala. App.) 118 So. 262; Carraway v Smith (Ala. Sup.) 118 So. 758; Carraway v. Graham (Ala. Sup.) 118 So. 807.

The burden of proof was upon the plaintiff to show the negligence charged, and that it proximately caused the wrongful condition and injury for which the suit was brought. Moore v. Smith, 215 Ala. 592, 111 So. 918; Carraway v. Smith, supra; Morgan Hill Paving Co. v. Fonville (Ala. Sup.) 119 So. 610. The application of res ipsa loquitur is not made in such a case. The proof must go further than merely show that an injury could have occurred in an alleged way-it must warrant the reasonable inference and conclusion that it did so occur as alleged-and the inference merely that it could so occur does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause. Southworth v. Shea, 131 Ala. 419, 30 So. 774; Carraway v. Graham, supra; Southern Rwy. v. Dickson, 211 Ala. 486, 100 So. 665; Mobile Light & R. R. v. Roberts, 192 Ala. 486, 68 So. 815; Central, etc., Co. v. Alabama Co., 204 Ala. 41, 85 So. 738; St. Louis, etc., Co. v. Dorman, 205 Ala. 609, 89 So. 70.

Appellant limits his assignment by the statement that all errors on the record are waived, except that for the refusal to give the general charge, and that of the refusal to grant the motion for a new trial.

The complaint charges that defendant conducted himself as her physician in such a negligent and unskillful manner in and about the performance of medical services upon plaintiff, and as a "proximate consequence thereof her womb became infected and she contracted blood poisoning therefrom." Does the evidence contained show a state of facts from which it may be reasonably inferred that plaintiff became so infected by reason of the negligence or unskillful treatment or the lack of ordinary care and skill of the defendant as her physician? He was called and administered or treated her within the period of an existing illness. The material inquiry of fact is whether or not the plaintiff was suffering from blood poisoning before and when the physician was called, or did she become infected by his improper treatment, or by reason of the lack of the required proper treatment and skill on defendant's part, after he was called as a physician to her bedside.

The rules of good pleading and evidence necessary to a recovery are: (1) A duty owing from defendant to plaintiff in the particular circumstances of the case; (2) a negligent performance or negligent failure to perform that duty; which resulted in (3) injury to plaintiff as a proximate consequence thereof.

In Western Rwy. of Ala. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L. R. A. 316, 38 Am. St. Rep. 179, this court declared that to constitute actionable negligence there must be not only a "causal connection between the negligence complained of and the injury suffered, but the connection must be by a natural and unbroken sequence-without intervening, efficient causes-so that but for the negligence of the defendant the injury would not have occurred; it must not only be a cause, but it must be the proximate [cause]; that is, the direct and immediate efficient cause of the injury." This rule of actionable negligence has been adhered to in this jurisdiction. Morgan Hill Paving Co. v. Fonville, supra; Armstrong v. Montgomery Street Rwy. Co., 123 Ala. 233, 26 So. 349; M. & O. R. Co. v. Christian M. Brew. Co., 146 Ala. 404, 41 So. 17.

The motion for a new trial and affirmative instruction denied are argued together. The respective rules that govern (Cobb v. Malone, 92 Ala. 630, 9 So. 738; McMillan v. Aiken, 205 Ala. 35, 40, 38 So. 135; Morgan Hill Paving Co. v. Fonville, supra) need not be repeated.

There are important facts to be considered, as that, before the call of defendant as plaintiff's physician, she was subject or affected by some positive cause (as disease, injury, or infection, etc.) that produced an abortion or miscarriage; that she had suffered or experienced former miscarriages; that immediately preceding said illness she had visited Birmingham and before her return was afflicted with flooding or symptoms that attend a miscarriage and did abort after she returned to her home in an outlying village in Jefferson county; that because of this flooding, fever, and the attendant ills and danger with which she suffered, the defendant was called as physician; after observation and interrogation of the patient he diagnosed her condition as that of miscarriage or abortion and immediately administered the required treatment thought by him to be necessary; he requested a woman who was present to thoroughly cleanse the outward parts of the patient, while he thoroughly sterilized his hands and the gauze required and used in packing the inner parts in order to check or stop the flow of blood and give nature a chance to cleanse the patient's womb; that defendant only used his fingers for vaginal examination and packing; did not dilate or enter the womb at any time, or touch the same with his fingers, other than covered by the thoroughly and properly sterilized gauze with which the packing was made.

It is further testified by these professionals that the womb may become infected from many causes, whether sterilized rubber gloves or sterilized hands are used; that the womb cannot be entered with the fingers without dilation; and that plaintiff's womb was not dilated in examination or treatment; that physicians in that community used sterilized fingers in making vaginal examinations and packing. These professional witnesses, or more than one of them, gave evidence to the effect that it was not considered improper, after the use of a hot lysol solution, in the thorough sterilizing of the hands and the gauze to be used as packing, "to insert and pack the same with the fingers without gloves." More than one of these professional witnesses stated that "for the purpose of making a packing and inserting it [the gauze] in the vagina," he [they] did not think that would be [an] improper practice, "though witness usually used gloves, and the best authorities recommend the use of gloves; that the gloves were as much for the protection of the physician "as any other purpose"; that the physician can make "examinations sometimes better without gloves than he can with them-better with my [the] naked fingers."

The testimony of the defendant was that in his examination and treatment his "fingers were not within two inches of the cervix," the narrow lower end of the womb; that, when he removed the afterbirth, he employed as gentle a "pull on it as it would stand without tearing," and by this means he removed the same; that it was ragged, jagged, and elongated, showing, as he said as a professional about such matter, that the afterbirth had been torn loose from its physical mooring for some time preceding its removal; the condition, he observed, showed an abortion of "say a ten weeks' pregnancy," at which stage the naval cord should be about twelve inches long; that, if the f tus and said cord were expelled before the defendant was called in, the plaintiff knew it; that the afterbirth removed by defendant contained no "vestige of the naval cord."

The plaintiff stated on cross-examination that she did not know she had a miscarriage; told her sister that the doctor seemed to think it was a miscarriage. Plaintiff had stated on her direct examination:

"When he go there he asked me my condition and symptoms and I told him. He said, 'Well, we will have to pack you; I don't see anything else to do;' and he asked me did I think I was pregnant, and I said, 'I don't know, that is for you to find out;' and I told him if he thought I was to go ahead and clear me out and get through with it; that I was afraid of the blood poison that

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