Moehlenbrock v. Parke, Davis & Company
| Decision Date | 06 February 1920 |
| Docket Number | 21,593 |
| Citation | 176 N.W. 169,145 Minn. 100 |
| Parties | FRED J. MOEHLENBROCK, AS ADMINISTRATOR OF THE ESTATE OF ALBERT R. MOEHLENBROCK, DECEASED v. PARKE, DAVIS & COMPANY; JOHN B. ROSENWALD AND ANOTHER, APPELLANTS |
| Court | Minnesota Supreme Court |
After the former appeal reported in 141 Minn. 154, 169 N.W. 541 the motion of defendants Rosenwald and Andrews in the district court for Blue Earth county for judgment notwithstanding the verdict or for a new trial was denied Comstock, J. From the judgment entered February 24, 1919, and from the order denying their motion for judgment notwithstanding the verdict or for a new trial, defendants Rosenwald and Andrews appealed. Affirmed.
Negligence of surgeon in administering ether.
1. The evidence in this case was sufficient to sustain a finding that defendants, surgeons, were negligent in administering to a patient ether that was unfit for use, and in their care after the ether was administered.
Skill required of surgeon -- careless use of anaesthetic.
2. The skill and diligence which the law requires of a physician or surgeon is such as is usually exercised by others of the same school. He is not ordinarily liable for mistake of judgment, unless it is so marked as to constitute negligence. If a surgeon persists in the use of an anaesthetic, after warning which would impel one of reasonable prudence to desist, he should be held to answer for the consequences.
Evidence of malpractice -- case followed.
3. Expert testimony for plaintiff is not always necessary in order to make proof of malpractice. Rule stated in Moratzky v. Wirth, 74 Minn. 146, followed.
Opinion of experts not conclusive, when.
4. Other alleged errors present no ground for reversal.
Kerr, Fowler, Schmitt & Furber, for appellants.
Leach & Leach and Daniel Carmichiel, for respondents.
Plaintiff's intestate, a young man in good general health, submitted to an operation, under the influence of ether, for the removal of his tonsils. The ether was administered and the operation performed by defendants Andrews and Rosenwald. The ether used was manufactured by defendant Parke, Davis & Company. Deceased never recovered from the administration of the ether, and died as a result of it in a few hours. That there was fault somewhere was clear. Plaintiff charged the defendant surgeons with malpractice and defendant Parke, Davis & Company, with negligently putting on sale ether unfit for use. Plaintiff had a verdict against all defendants. A former appeal was taken by defendant Parke, Davis & Company [141 Minn. 154, 169 N.W. 541]. This court held that there was evidence to sustain a finding that the ether was unfit for use; that its use was dangerous to life; that defendant Parke, Davis & Company, was negligent in putting it on sale, and that its use was a proximate cause of decedent's death. This appeal was then taken by defendants Andrews and Rosenwald.
1. Appellants contend that there is no evidence to show malpractice. Respondent makes various contentions. These two appeal to us. It is contended that the doctors early discovered the pernicious effect of the ether, but negligently persisted in its use, and that they neglected to give the patient proper care after the operation. We think there is evidence to sustain both contentions.
As to the first proposition the appellants themselves gave this testimony:
Doctor Andrews said, during the operation: "The patient came out rather quickly from the ether so I administered a little bit more, but I noticed that it was hard to fully relax the patient * * * he seemed to resist every time the doctor tried to remove the tonsils, and I did not like to push the anaesthetic in this instance, because of what I had observed, that when I did push it a little the patient became blue or a little cyanotic you might say, and I would raise the mask until that condition would pass away, and then repeat the giving of the anaesthetic, so the doctor could go on with his work, but that is the way the patient acted during the whole time of the administration of the anaesthetic."
Doctor Andrews further testified in substance that, if a patient is on the table, having ether administered, and develops a cyanotic condition and if that cyanotic condition proceeds and increases as the ether is being administered, it is dangerous to continue it. When that condition appears it is a signal of warning to a physician that, if the ether is persisted in, it is dangerous, and if persisted in too much it will cause the death of the patient.
Doctor Rosenwald said: "We had that difficulty during the operation * * * and I think the trouble was of such a nature that if the operation had not been partly completed and it had been a long operation I would not have finished it, I would have waited." Question: "If it had been an operation that would have taken half or three-quarters of an hour, would you have tried to finish it?" Answer "No sir." Doctor Rosenwald further testified that the usual tonsil operation is a...
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