Moore v. Bell

• Decision Date: 11 December 1948
• Citation: 215 S.W.2d 787,187 Tenn. 366
• Parties: MOORE v. BELL et al.
• Court: Tennessee Supreme Court

215 S.W.2d 787

187 Tenn. 366

MOORE v. BELL et al.

Supreme Court of Tennessee.

December 11, 1948

Error to Circuit Court, Knox County; John M. Kelly, Judge.

Action by Minnie Moore, as administratrix of estate of her deceased son against Spencer York Bell and another, physicians and surgeons, for malpractice. To review an order sustaining a motion to dismiss, plaintiff brings error.

Reversed and remanded.

James L. Witt, Jr. and Leslie Bass, both of Knoxville, for plaintiff in error.

Hodges & Doughty, A. J. Hartman, and Singleton M. McGhee, all of Knoxville, for defendants in error.

GAILOR Justice.

This appeal presents an action in damages for malpractice brought by plaintiff, Minnie Moore, as administratrix of the estate of her deceased son, against the defendants Bell and Gammon who were physicians and surgeons, and charged with the professional care of the son at the time of his death. The original declaration was met by a motion to make more specific allegation, inter alia, of the cause of the death of the son, who, according to the declaration, died in the office of defendant Bell a very short time after an operation performed by Bell in the presence of Gammon. The son never regained consciousness after the operation, and the original declaration alleged 'while unconscious under the effects of the anesthetic and the operations, began to suffer discomfort and blood appeared from the nose and mouth resulting in the death of the Defendants' patient.'

The learned Trial Judge sustained the motion to make more specific allegations of the cause of death, and thereupon the plaintiff filed an amendment to the declaration which may be summarized as follows:

That the defendants were negligent in that they failed to take a case history of the decedent before performing the operation; in that they failed to make a preoperative examination of the decedent to determine whether the decedent could successfully undergo an operation; to make or cause to be made, an examination of decedent's heart to take decedent's blood pressure; to take a blood count; to make a test of decedent's blood especially for bleeding; to make or cause to be made a urinalysis; to make necessary and proper examination to determine the type of anesthetic that was suitable to be used; to properly observe the decedent which under the influence of the anesthetic which defendants had administered; to take all necessary care and precaution to prevent the loss of blood during and after the operation; to provide necessary care and post-operative observation and attention of their patient, and finally, the amendment alleged that 'the said acts of negligence, singly, jointly and collectively, caused the death of the decedent.'

After the filing of this amendment to the declaration, motion was then made by the defendants to dismiss for failure to allege with 'particularity the specific cause of the death of the intestate of the Plaintiff.' The motion to dismiss was sustained on the following ground:

'The original declaration and the additional averments filed on the 26th day of August, 1948, do not declare in the language of the medical profession the cause of death of plaintiff's intestate, and the Court accordingly is of the opinion that the said motions to dismiss should be sustained, * * *.'

From the dismissal of her suit, the plaintiff has appealed and assigned errors. We think the assignments are valid and must be sustained. The action of the Trial Judge in requiring the plaintiff to couch her declaration in the technical language of the medical profession was erroneous and inconsistent with our statutes and decisions providing for liberal and nontechnical pleading. By them, a declarant is not only freed from the necessity of couching his declaration in the technical language of the medical profession, but is also freed, so far as possible, from the necessity of using the technical language of the law.

'All pleadings shall state only material facts, without argument or inference, as briefly as is consistent with presenting the matter in issue in...