Miller v. Blackburn

• Decision Date: 18 May 1916
• Citation: 170 Ky. 263,185 S.W. 864
• Parties: MILLER ET AL. v. BLACKBURN ET AL.
• Court: Kentucky Court of Appeals

185 S.W. 864

170 Ky. 263

MILLER ET AL. v. BLACKBURN ET AL.

Court of Appeals of Kentucky.

May 18, 1916

Appeal from Circuit Court, Warren County.

Action by Annie Miller and another against John H. Blackburn and another. Judgment for the defendants, and plaintiffs appeal. Affirmed.

Bradburn & Basham, of Bowling Green, for appellants.

Sims Rodes & Sims, of Bowling Green, for appellees.

CLARKE J.

Mrs Annie Miller and her husband, J. J. Miller, brought this suit February 5, 1914, against appellees, Drs. Blackburn and Francis, for malpractice, alleging that in treating her, as physicians, in September, 1911, they broke or injured the neck or head of the femur by negligently manipulating her leg, causing it to be shortened about three inches, and to turn outward, as the result of which the use of her leg was nearly destroyed, and she is compelled to walk on a crutch.

At the time of the operation she lived at Richardsville, in Warren county, Ky. about ten miles from Bowling Green, where Dr Blackburn resided. Pursuant to an employment by plaintiff's husband, Dr. Blackburn on September 7, 1911 went to her home and made an examination of Mrs. Miller. As a result of this examination, which seems to have been a very thorough one, Dr. Blackburn pronounced that she was suffering from a chronic case of sciatica, and he discovered no other trouble of any kind. Mrs. Miller was lying in bed with her right leg, stiff at both the hip and knee joints, stretched straight out, with the toes upright. There is no question made but that Mrs. Miller was suffering from chronic sciatica, with which she had been afflicted for nearly a year, and that she had been confined to her bed as a result thereof for about three months prior to the examination, during all of which time she had the attention of a physician, Dr. Francis, upon but two occasions when her suffering had been so intense as to require the administration of a narcotic, and upon both of these occasions Dr. Francis had been informed by her husband that, if his services were needed further, he would be notified.

After making the examination Dr. Blackburn informed Mrs. Miller and her husband that, in his judgment, an operation would be necessary to break up the adhesions along the sciatic nerve and in the hip and knee joints, but before resorting to an operation he would try medicinal treatment which he prescribed, with instructions that they should let him know the result in ten days. After giving this treatment for ten days Mr. Miller reported to Dr. Blackburn that her trouble was not yielding to the treatment, and it was then arranged between the husband and Dr. Blackburn for the latter to perform the operation, and upon his suggestion Dr. Francis was employed by Mr. Miller to administer the anæsthetic. On September 18, 1911, Dr. Blackburn went to the home of appellants, taking Dr. Francis with him, and, after the anæsthetic had been administered by Dr. Francis, Dr. Blackburn performed the operation in the presence of Mrs. Hill and Mrs. Whalin by manipulating the leg and flexing the joints in order to break up the adhesions at the hip and knee joints and along the sciatic nerve.

Dr. Blackburn in his testimony described the manner in which he performed this operation, about which he is not contradicted, and all of the evidence of the physicians introduced on both sides was that the operation as performed was proper, as indicated by the existing stage of the disease. Before beginning the operation Dr. Blackburn had informed the ladies in attendance that, if they would listen they would hear a popping or cracking noise as the adhesions were broken up, and during the operation he called their attention to such a noise, which was noticed by all of them.

Dr. Blackburn and Dr. Francis remained in the house until Mrs. Miller regained consciousness, and when leaving Dr. Blackburn left instructions that the affected leg should be manipulated each day in much the same way he had done in order to prevent the adhesions from forming again. During the next day Dr. Francis paid what he termed a social call upon Mrs. Miller, and for which no charge was made, to see how she was getting along, and, except for this call, neither Dr. Blackburn nor Dr. Francis ever saw the patient professionally again, nor was either of them or any other physician ever called to see Mrs. Miller until January, 1913, when she had gotten well, and then she consulted another physician, presumably for the purpose of ascertaining the cause of her crippled condition.

After the operation the leg was manipulated as directed for about six weeks, when the manipulations were discontinued because of the unbearable pain incident thereto. Mrs. Miller was confined to her bed for ten months after the operation, when an abcess formed at the hip joint from which pus was discharged for a period of five months. After this discharge had ceased, as Mrs. Miller testifies, she was entirely well, except for her crippled condition, and was in better health than she had been at any time since the disease first manifested itself.

All of the physicians who testified in the case, including Dr. Victor Meddis, of Louisville, who was introduced by appellants, stated that the present condition of Mrs. Miller's leg is the result of a tubercular condition of the upper end of the femur, which destroyed a portion of the bone, permitting the muscles of the leg and hip to shorten the leg to the extent that the bone was destroyed by the tuberculosis.

At the conclusion of appellants' testimony a motion by appellees for a peremptory instruction was overruled, which motion was renewed at the conclusion of all the evidence, and then sustained by the court, and a judgment entered dismissing appellants' petition. As reasons for reversal of this judgment, appellants present three propositions: (1) That appellants' second amended petition should have been filed; (2) that the court should have instructed the jury that, if the relationship of physician and patient had been created, it was the duty of appellees to have rendered such continued treatment after the operation as the necessity of ...