Meyer v. St. Paul-Mercury Indem. Co. of St. Paul, Minn.

• Decision Date: 15 December 1952
• Docket Number: PAUL-MERCURY,No. 19905,19905
• Citation: 61 So.2d 901
• Parties: MEYER v. ST.INDEMNITY CO. OF ST. PAUL, MINN. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 901

61 So.2d 901

MEYER v. ST. PAUL-MERCURY INDEMNITY CO. OF ST. PAUL, MINN. et al.

No. 19905.

Court of Appeal of Louisiana,

Orleans.

Dec. 15, 1952.

Rosen, Kammer, Hopkins, Burke & Lapeyre, New Orleans, for plaintiff and appellant.

Lemle & Kelleher, Harry B. Kelleher and Carl J. Schumacher, Jr., New Orleans, for St. Paul-Mercury Indemnity Co. defendant and appellee.

Adams & Reese, New Orleans, for Dr. Leopold L. Levy and Etna Casualty and Surety Co., defendants and appellees.

Manuel I. Fisher and Herbert J. Garon, New Orleans, for Dr. Evelyn Katz Halle, defendant and appellee.

JANVIER, Judge.

Mrs. Eugenie Meyer, widow of Nathan C. Barnett, a lady 61 years of age at the time, having been advised by her family dentist, Dr. Armand R. Suarez, that it would be advisable that she have all of her remaining teeth extracted, employed Dr. Leopold L. Levy, an oral surgeon, one of the defendants, for the purpose of complying with this recommendation of Dr. Suarez. Arrangements were made for a room and for the use of an operating room in the Hotel Dieu, a local hospital. It was necessary that an anesthetic be administered, and during this process, which was being conducted by Dr. Evelyn Katz, also a defendant, one of Mrs. Barnett's upper front teeth became dislodged and found its way into one of her lungs. It was necessary that an expert, Dr. George Taquino, be employed to remove the tooth from the lung. This was successfully accomplished with the use of an instrument known as a bronchoscope.

For her pain and suffering and for the alleged permanent injury to her lung and for her losses and expenses, Mrs. Barnett has brought this suit based on the alleged malpractice of two of the defendants, the oral surgeon, Dr. Levy, who was to remove the teeth and the anesthetist, Dr. Katz, who was administering the anesthetic.

The other defendants are Daughters of Charity of St. Vincent de Paul, the Missouri corporation which operates the hospital in which the operation was to have been performed, St. Paul-Mercury Indemnity Company, its liability insurance carrier, and also AEtna Casualty and Surety Company, the liability insurance carrier of the oral surgeon, Dr. Levy.

In a supplemental petition plaintiff alleged that the policy of insurance which had been issued to the hospital corporation by St. Paul-Mercury Indemnity Company, through mutual error, had not specifically named the anesthetist, Dr. Katz, as an insured, and plaintiff prayed that the policy be reformed so as to include her as an insured, and that accordingly should it be held that the anesthetist had been at fault, judgment should run against this insurer not only as the insurer of the hospital, but also as the insurer of Dr. Katz.

Dr. Katz, the anesthetist, in her answer to plaintiff's petitions, original and supplemental, called the hospital corporation in warranty, alleging that she, the anesthetist, had been employed by the said hospital corporation and that when she had accepted employment she had advised the 'administratrix' of the said corporation that she desired to secure a policy of insurance protecting her against claims of malpractice or physician's liability, and that she did not herself secure such a policy for the reason that the said 'administratrix' and also the 'Treasurer and/or Business Manager' of the said hospital corporation had advised her that the said corporation 'carried such insurance for the hospital and for all of its employees.'

In her petition Mrs. Barnett charged that, while she was in the operating room 'asleep or anesthetized and unconscious' and a patient of Dr. Levy, 'one of her left upper front teeth was carelessly and negligently knocked out and further negligently and carelessly permitted after being dislodged to fall and descend' into her right lung. She further alleged that she 'had no knowledge of what transpired or what caused or who caused the said tooth to be knocked out * * *; that the agencies or instrumentalites causing the said tooth to be knocked out * * * were completely and exclusively under the control of the * * * defendants * * * and * * * petitioner is entitled to judgment under the doctrine of res ipsa loquitur.' She then, in the alternative that it should be held that the doctrine res ipsa loquitur has no application, alleged specific acts of negligence as follows:

(1) That Dr. Katz, while giving the anesthetic, negligently knocked or caused the said tooth to be knocked out, and failed to prevent it from descending into her lung in spite of the fact that she knew or ought to have known that there was danger that there might be such an occurrence, and in that Dr. Katz failed to notice that the tooth had been knocked out, and did not report that it had been knocked out and had fallen into her lung; and

(2) That Dr. Levy was negligent in that, although petitioner was under his care and supervision and he knew that in administering the anesthetic there was danger of such an occurrence, he did not himself 'watch and observe the giving of the anesthetic and took no steps to prevent and did not prevent the said tooth being knocked out and falling into petitioner's lung * * *.'

After a lengthy trial, there was judgment dismissing plaintiff's suit as against all defendants. The judge a quo gave the following reasons for dismissing the suit:

'After a review of the authorities, I have come to the conclusion that the doctrine of res ipsa loquitur does not apply in this case.

'I have further come to the conclusion that the plaintiff has failed to sustain the burden of proving negligence on the part of any of the defendants.

'Under the circumstances it is not necessary to pass on any of the other questions involved in the case.'

There is little dispute as to the facts. The plaintiff was suffering from pyorrhoea, and her dentist, Dr. Armand R. Suarez, advised that she employ Dr. Leopold L. Levy, an exodontia oral surgeon, to remove her remaining teeth. Dr. Suarez says:

'* * * I recommended her to Dr. Levy. I said the teeth were pyorrhetic and there was loosening of the teeth. The teeth were diseased. I recommended her to Dr. Levy.'

Later he said:

'* * * She was losing them little by little.'

Dr. Levy says that Mrs. Barnett called on him and advised him that all of her remaining teeth were to be removed, and he says that he 'looked in the mouth' and 'could see there was one particular loose one,' but that he did not examine each one particularly. He said that the loose tooth which he saw was not the one which later found its way into Mrs. Barnett's lung, and he later said that he could not say whether the tooth which found its way into Mrs. Barnett's lung at that time 'was loose' or 'firm'.

Since it was oral surgery which was to be performed, it was necessary that there must be resorted to some method of administering the anesthetic which would leave the mouth unobstructed. The method adopted was what is referred to by the various doctors as nasal endotracheal intubation. This method requires that a rubber tube be passed through the nose and that the tip of it be seated behind the trachea. To insert this tube there must be employed a laryngoscope, the one used in this case being known as a Guedel laryngoscope, which is a metallic instrument the body of which is held in the hand of the anesthetist, and which body is about the size of the ordinary household flashlight. Attached to the upper end of this instrument is a flat piece of metal several inches in length, about as wide as the blade of a wide table knife, and which is about an inch or more in thickness from the top to the bottom, at the rear end, and tapers to about one-half inch at the forward end. On the forward end of this upper extension there is a flashlight, which enables the anesthetist to see just where the rubber tube is being placed as it enters the throat after having passed through the nose. When this laryngoscope is inserted into the mouth, it obviously occupies almost the entire opening between the lips.

It is very evident that it was while this laryngoscope was in the mouth of Mrs. Barnett and the tube was being placed in position that one of her front upper teeth was knocked out or became dislodged spontaneously and found its way into her lung.

Dr. Katz, who was administering the anesthetic and who was exclusively in the employ of the hospital corporation, says that just after the laryngoscope was removed and while she, Dr. Katz, was getting the anesthetic 'under way' through the tube, she and Dr. Levy noticed blood in Mrs. Barnett's mouth and found that there was an upper front tooth missing.

Dr. Levy who, in his joint answer with the insurer, had averred that he had no knowledge 'that plaintiff's tooth was knocked out and lodged in her lung until after she was anesthetized,' stated that the words 'knocked out' had been used inadvertently, and that what he meant was that he had found that the tooth was missing, and that he had immediately ordered that an x-ray be made, and that it was then that the tooth was discovered in Mrs. Barnett's lung.

Since there was no evidence which could be pointed to as positively showing that the tooth had actually been knocked out, counsel for plaintiff argued that the doctrine res ipsa loquitur is applicable and that, as a result of the effect of this doctrine, the defendants are under the necessity of showing that there was no fault on the part of Dr. Levy or Dr. Katz.

And we find counsel in a controversy over the question of whether, in such a case as this, the doctrine res ipsa loquitur is applicable. The plaintiff vehemently contends that, as a result of that doctrine, she is under no obligation to show negligence on the part of anyone, and that if the defendants would escape liability, the burden is on them to show that there was no fault from which the unfortunate occurrence resulted.

The defendants, on the other hand, stoutly maintain that the doctrine has no application here and...