Mitchell v. Robinson

• Decision Date: 11 April 1960
• Docket Number: No. 2,No. 47460,47460,2
• Citation: 334 S.W.2d 11,79 A.L.R.2d 1017
• Parties: William MITCHELL, Respondent, v. G. Wilse ROBINSON, Jr., Paul Hines, Louise Loewy, Jack D. DeMott, Olive B. Robinson, Erna M. Robinson, Lucille Demott, Paul E. Robinson, Doing Business as Robinson and Robinson, a Partnership, Appellants
• Court: Missouri Supreme Court

Page 11

334 S.W.2d 11

79 A.L.R.2d 1017

William MITCHELL, Respondent, v. G. Wilse ROBINSON, Jr., Paul Hines, Louise Loewy, Jack D DeMott, Olive B. Robinson, Erna M. Robinson, Lucille Demott Paul E. Robinson, Doing Business as Robinson and Robinson, a Partnership, Appellants.

No. 47460.

Supreme Court of Missouri, Division No. 2.

April 11, 1960.

Henry W. Buck, John R. Gibson, Morrison, Hecker, Buck & Cozad, Kansas City, for appellants.

A. C. Popham, Kansas City, for respondent. Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

BARRETT, Commissioner.

William Mitchell has been awarded $15,000 damages against the Doctors Robinson and their associates, particularly Dr. Jack DeMott, for malpractice, and the essentially meritorious problem is whether upon the record there is any evidence to support the jury's finding of negligence.

Mitchell and Dr. DeMott were boyhood schoolmates in Independence, Kansas, attended Kansas University at the same time, and were both living in Independence when Dr. DeMott began the practice of medicine there. So when in 1951, at age 35, Mitchell was beset with serious emotional problems he sought out Dr. DeMott who was then a specialist in neurology and psychiatry and was then associated with the Doctors Robinson and the Neurological Hospital in Kansas City, Missouri. Mitchell had 'a rather severe emotional illness,' process schizophrenia, but he was not mentally incompetent; his illness was characterized by serious depression and rather severe anxiety, complicated by alcoholism. It is not necessary at this point to detail his case history and symptoms; it was the opinion of the doctors that he should have 'combined electro-shock and insulin subcoma therapy.' The general purpose of electroshock treatment is to build up the patient's 'defenses and controls and self-confidence' while insulin relieves 'basic anxiety' and 'disturbance of the mood.' The desired physical reaction and intended purpose of electroshock is to induce convulsive seizures of forty to fifty seconds duration. The desired physical reaction of insulin shock is the indication of unconsciousness, a 'subcoma' state, but it is neither intended nor desired, as it is with electroshock, that the patient suffer a convulsion. One of the unpredictable results of insulin shock, however, is an unpreventable convulsion and one of the hazards of convulsions, whether from insulin or electroshock, is fractured vertebrae, fractured legs and various other injuries.

On October 25, 1951, Mitchell had his first electroshock treatment, the next day another, and, after two days' rest, his first insulin shock October 28 and the next day another, and on the 30th his third electroshock and on the 31st another insulin treatment. There were convulsions with the electroshock treatments but no untoward results; the insulin treatments came off with normal results and reactions except that on the 31st Mitchell suffered a convulsion and that particular treatment was successfully terminated by an intravenous injection of glucose. Insulin treatment, reduced to 25 units, was resumed November 2, but Mitchell went out for a walk and came in drunk and the treatments were 'started over' again on November 4 with 25 units, increased to 40 units November 5 and on November 7, with his seventh insulin treatment of 40 units, he had 'a hard generalized convulsion,' a grand mal seizure, which resulted in a compression fracture of the fifth, sixth and seventh dorsal vertebrae. It is to recover damages for these specific injuries that Mitchell instituted this action.

These briefly noted facts are excerpted as background for certain basic distinctions in this and other malpractice cases and eventually to point up the problem precisely involved upon this appeal. The appellant doctors, relying on the general rules (Williams v. Chamberlain, Mo., 316 S.W.2d 505), contend that their motions for a directed verdict should have been sustained because 'There was no expert testimony to show that the insulin therapy administered to Mitchell failed to conform to the required standards of an ordinarily careful and prudent neurologist or psychiatrist in the community,' indeed, the greater part of their brief is devoted to this subject. This phase of the appellants' argument has but little, if any, bearing upon the basic problem involved here; it may be that they could not anticipate just what position the plaintiff would take. But the plaintiff has made it perfectly clear that there is no claim of negligence in any of these general respects; in his brief he repeatedly disclaims any such reliance: 'Under point I(a) appellants say there was no expert testimony to show that the insulin therapy administered to Mitchell failed to conform to the required standards. That is not the complaint. * * * Plaintiff does not question the technique of administering the insulin, nor does he deny that is should have been administered. * * * There (Steele v. Woods, (Mo.) 327 S.W.2d 187), as here, there was no complaint that the operation was not recommended by good medical practice and was not competently done.' Furthermore, there is no question here as to the plaintiff's consent to the treatment (annotation 139 A.L.R. 1370) or claim that the procedure extended beyond that contemplated by the consent. Annotation 56 A.L.R.2d 695. Again the plaintiff disclaims: 'Indeed, he consented to that. * * * Mitchell had already given his oral consent.'

On the other hand, despite the repeated disclaimers, the plaintiff immediately argues, inconsistently, that 'The issue on the second ground of negligence is whether defendants owed plaintiff a duty to use ordinary care to prevent injury to him during the insulin treatment. On this issue, as well, the defendants provided the necessary expert evidence.' At another point the plaintiff says: 'But he also proved the defendants were negligent after it had been administered in that they failed to use ordinary care to prevent the convulsion by giving him an injection of glucose, when they had ample opportunity to give him the injection. He proved they were negligent in failing to prevent injury from the convulsion after it had begun by guarding him with proper restraints--ankle and wrist cuffs, and a complete body covering as described by Dr. Pool.' Upon this phase of the argument the fact was that when the insulin was administered to Mitchell, and all other patients receiving the treatment, he was placed on his back upon a hospital bed with a heavy leather 'waist belt' or restraint around the middle of his body. And on this particular occasion, as on other occasions, five attendants were present at the bedside, two colored maids, a male attendant, a nurse and Mrs. Wuebbold, the experienced (more than twenty years) supervisor of insulin therapy,--it was she who administered the insulin. The defendants produced as a witness Dr. Pool, a radiologist connected with a veterans' hospital, Fort Roots Hospital, North Little Rock, Arkansas. While he was neither a neurologist nor a psychiatrist and disclaimed any special qualification in these fields he had made two case studies of the incidence of fractures from shock therapy as they occurred in his hospital. In one study of 46 insulin shock patients he testified that eighteen per cent of them sustained fractures, that in the course of combined electro and insulin shock treatment of 53 patients nineteen per cent sustained fractures, and in another group of 32 patients twenty-five per cent sustained fractures. In his cross-examination Dr. Pool said that in Fort Roots Hospital patients receiving shock treatment were placed in a heavy canvas shroud covering their bodies from head to foot. Another of the defendants' witnesses, Dr. Bills, a neuropsychiatrist, said that wrist and ankle cuffs were sometimes employed. Mrs. Wuebbold, Dr. Bills and others, said that when the first signs of a convulsive seizure appeared, a twitching about the eyes and mouth, glucose was administered to restore consciousness, terminate the treatment and thus prevent a convulsive seizure. These and other circumstances are pointed to, the fact that Mrs. Wuebbold stood at his bedside and saw the face twitching but did not administer glucose, and it is argued that the jury could reasonably draw the inference that the defendants failed to use ordinary care to prevent injury during the treatment in that they could and should have employed all or some of these measures or expedients and thus have prevented the convulsive fractures.

Aside from the disclaimers and the inconsistency of the plaintiff's argument, the insuperable difficulty with this theory of liability is that he did not offer any expert medical testimony upon any of these subjects and the testimony pointed to does not support the inference of negligence in failing to prevent injury during treatment or in failing to employ other restraints or in failing to administer glucose. While the defendants' witnesses testified that wrist and ankle cuffs or other restraints were sometimes employed or glucose used (as it was successfully on Mitchell's sixth insulin treatment), without exception they all testified that the procedures, measures, restraints and treatment employed on the occasion of his seventh insulin treatment were all in accordance with recognized medical practice in such cases in Kansas City and no other inference is fairly permissible from this testimony. These are not matters of common knowledge or within the experience of laymen and expert testimony is necessary to establish negligence in these respects (Williams v. Chamberlain, supra; Steele v. Woods, supra) and proof that some other measure was possible or that elsewhere some other type of restraint was in use does not support the inference of negligence or here supply the deficiencies in the plaintiff's proof. Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172; Farber v. Olkon, 40 Cal.2d 503, 254 P.2d 520; Regan,...