Meador v. Arnold

• Decision Date: 25 February 1936
• Citation: 264 Ky. 378
• Parties: Meador v. Arnold.
• Court: United States State Supreme Court — District of Kentucky

264 Ky. 378

Meador v. Arnold.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

Decided February 25, 1936.

1. Physicians and Surgeons. — In malpractice action, presumption of negligence is never indulged from mere evidence of mental pain and suffering of patient, or from failure to cure, or bad results, or because of appearance of infection; but burden is upon patient to prove negligence of physician which was proximate cause of patient's injury.

2. Physicians and Surgeons. — Doctrine of res ipsa loquitur has no application in malpractice actions, and hence failure to effect cure or to obtain expected result does not create a presumption of negligence or lack of skill nor create inference of incompetency or negligence.

3. Physicians and Surgeons. — Physician is not responsible for erroneous exercise of judgment, provided he informs himself of facts by proper examination.

4. Physicians and Surgeons. — Facts necessary to establish cause of action for malpractice can only be proven by experts, skilled in medicine or surgery and qualified to testify where matter is exclusively within knowledge of experts, and right of recovery cannot be established by testimony of laymen unless subject-matter involved is common knowledge or ascertainable by nonexpert's senses.

5. Physicians and Surgeons. — Where proof of facts which tend to show negligence of physician depends upon expert opinion and shows nothing more than error of judgment, negligence may not be found.

6. Physicians and Surgeons. — Where expert evidence fails to show negligence of physician and there is no evidence to indicate act or ommission on his part within common knowledge of layman, jury cannot infer negligence and peremptory instruction is proper.

7. Evidence — Physicians and Surgeons. — Appearance of injured person after treatment by physician has commenced, and patient's declaration respecting existing pain, or its severity, may be proven by testimony of laymen; but whether negligence of attending physician or surgeon was primary cause thereof must be established by expert testimony.

8. Physicians and Surgeons. — Evidence or orthopedic surgeon's liability for negligence in failure to discover and remove from bladder bone peg which had moved from hip, where it had been placed in treatment of fracture, held insufficient for jury.

Appeal from Jefferson Circuit Court.

FRANK A. ROPKE, THOMAS A. BALLANTINE, and W.S. HEIDENBERG for appellant.

L.R. CURTIS for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

This is an action to recover damages for malpractice. The propriety of the court directing a verdict for the defendant is the perplexing question to be considered.

To review the action of the court, and consider and determine the correctness of his ruling, require a review of the pleadings and evidence. The petition, after setting out Dr. Arnold's employment to perform a hip operation for which no recovery herein was sought, and of which no criticism is now made, charges that within a few days after the operation, Anna Meador suffered intense pain in her abdomen and suggested to Dr. Arnold that the peg used by him in the hip operation had slipped into her abdomen when he assured her it was impossible and could not happen, and that he "negligently and carelessly refused and failed to make a proper examination of the plaintiff to ascertain whether or not the peg had slipped and entered her abdomen;" she continued to suffer excruciating pains and her bladder became infected, of which she made complaint to him, and that he "negligently and carelessly failed to make an examination." And in April, 1934, while she was suffering extreme pain, he finally suggested that she be removed to the Norton Infirmary for observation and an X-ray examination, which was accordingly done, and the examination then disclosed "the peg aforementioned had penetrated her bladder," and that on the 18th day of April, 1934, it was removed; it was the same peg or pin that he had placed in her broken bone. She charged that it was wood, 5 1/2 inches long by one-half inch wide and one-half inch thick, and when removed from her bladder had "a large stone formed around the center thereof." The petition was traversed by an answer. At the conclusion of her evidence the court directed a verdict for Dr. Arnold. The evidence introduced to establish her cause of action is substantially as follows:

Anna Meador, a maiden lady, age 55, on the 9th day of October, 1933, in a fall at her home, sustained a broken hip. The family physician, Dr. C.O. Tydings, was called immediately. A day or two thereafter, he diagnosed her injury to be a fractured hip and suggested that Dr. I.A. Arnold, a bone specialist, be called. He was called, and an X-ray examination developed that she had sustained "an intracapsular fracture of the left femur." At the latter's suggestion she was removed to the Norton Infirmary, on October 16, 1933, where he performed what is known as "an open bone operation." This operation required an opening up of the thigh to the bone; the drilling through the neck of the femur, and after the broken bone was set, a bone peg about five inches long and from one to five-sixteenths of an inch in circumference was driven into this opening to hold the broken bone in position. An infection later manifested itself in the injured hip which was drained by the method adopted and used by Dr. Arnold. Within a short time she had an enormous distension of the abdomen, "a fecal mass." Dr. Arnold thoroughly examined her about the sixteenth day after the operation to determine what the abdominal trouble was and the reason for it, when the "mass" was discovered. Dr. Tydings was of the opinion that she had "malignancy of the colon." Dr. Arnold informed him that on account of the condition of her hip, if the condition was malignant, she could not be disturbed. Dr. Tydings put her on a special treatment and in a few weeks the distension disappeared. About February following the operation, the patient complained of a burning of the bladder. Dr. Tydings was again called by the family and prescribed for her. She slightly improved and a urinalysis by him showed alkaline urine and some pus, for which he treated her. About April 1st, he informed Dr. Arnold the patient was not getting any better under ordinary treatment for cystitis. Dr. Arnold directed him to let her have another examination of the urine which, on being made, showed blood and pus in great quantities. On the next day Dr. Arnold advised a vaginal examination to see what could be detected, and upon this examination it was found there was a mass in the region of the bladder. It appears that the patient, about the 19th day of December, following "the open bone operation," experienced bleeding of the bladder "sufficient to be noticeable to the naked eye of a layman." However, her physical condition improved, which demonstrated the loss of but little blood, if any. Dr. Arnold did not direct Tydings in his treatment, except to advise with him and express his opinion. A slight bleeding of the bladder continued for about two weeks, then ceased. The patient suffered intense pain and excessive, frequent urination. Dr. Arnold examined the abdomen and looked over the patient on each of his visits; in all, he visited her 73 or 74 times. On April 14, 1934, at his suggestion, Dr. Owsley Grant, a specialist (a urologist), was called. Dr. Grant's X-ray examination disclosed that the bone peg had migrated from its position in the hip bone, passing through the intervening tissue of the patient's body, into the bladder. It traveled from the point where it was placed in the thigh bone, about six or seven inches to the farthest extended point of the bladder. The back end of it had already gotten entirely out of the hip bone, into the bladder. The place of exit from the tissue and of its entry into the bladder had walled off by a multiplication of the tissue. It was removed by an abdominal operation which was followed by an immediate complete recovery of the patient.

Dr. Grant delivered this peg to the American Urological Association "to show this very rare and unusual evidence of a foreign body in the bladder." He stated: "There is no report in medical literature of such a happening," known to him. When the patient was first examined by him with a cystoscope, it was his opinion "it was an incrustation of the bladder, which might, itself have been a loose stone, which very frequently occurs on a growth in the bladder."

He was asked and answered thuswise:

"Q. Suppose you took the X-ray thirty days before you did and found that the end of the bone was protruding through the hip bone, would you have removed it at that time? A. No, sir.

"Q. Why? A. Because if it was protruding through the bone there would be no way to get it out except by cutting the bone.

"Q. Would or not that operation have been advisable? A. No, sir, it would not. I would not have done it.

"Q. Why? A. * * * If it was still in the head of the femur it would not have reached the bladder. It must be free from the bone before it can reach the bladder."

At the time he removed the peg from the bladder, a protecting wall around it on the outside of the bladder had been formed by a multiplication of the tissue. That prevented any leakage occurring from the bladder after it had perforated into the soft tissue which lies in this portion of the pelvis. This protecting wall prevented the escape of the urine into the soft tissue. He was further asked and answered:

"Q. Would not it have been the proper practice to remove the peg even if you had found it before nature built up that wall? A. No sir; it would not, but it would have meant a very violent sepsis — blood poisoning. * * *

"Q. Even if Dr. Arnold had taken an X-ray at any time before your X-ray was taken and found the peg in a different position, you don't say he did anything wrong by leaving it in there? A. ...