Moore v. Holroyd

• Decision Date: 11 April 1929
• Docket Number: 6 Div. 39.
• Parties: MOORE v. HOLROYD.
• Court: Alabama Supreme Court

122 So. 349

219 Ala. 392

MOORE v. HOLROYD.

6 Div. 39.

Supreme Court of Alabama

April 11, 1929

Rehearing Denied May 23, 1929.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for malpractice by Margaret Louise Holroyd, a minor, suing by her next friend, Clyde W. Holroyd, against D. S. Moore. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Frank Dominick, Ben F. Smith, and Stokely, Scrivner, Dominick &amp Smith, all of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

BOULDIN J.

In common parlance, this is a suit for malpractice.

Count A of the complaint, on which the case went to the jury, charges that the defendant, a physician and surgeon, negligently conducted himself in and about a surgical operation and treatment of plaintiff in a case diagnosed as peritonitis, resulting in hernia, with impairment of health and constitution.

It appears the plaintiff, a child between four and five years of age, first developed swollen joints, soreness to the touch nervousness, and constipation. Dr. Ransom was first called in, and a little later Dr. McLean, a child specialist, was called as consulting physician. They agreed there was serious infection, suspected a ruptured appendix, advised an immediate operation, and Dr. D. S. Moore, this defendant, was selected as operating surgeon. The child was hurried to South Highlands Infirmary, and, concurring in the diagnosis, Dr Moore promptly performed the operation. The appendix was not ruptured, was not the cause of the infection, but, according to defendant, infection appeared in the peritoneum, and the appendix was removed by way of precaution.

On the evidence, the trial court charged out an issue as to negligence in the matter of deciding upon and performing an operation.

The case went to the jury on the question of negligence in the matter of properly suturing the tissues and closing the wound. Plaintiff insists the wound was left open and the ugly hernia which developed was due to negligence in this regard. Defendant insists the peritoneum, the muscles, and fascia were all properly sutured, and the skin on the outside closed by steel clips in common use for such purpose; that drainage for the operative wound was provided; that the hernia resulted from breaking down of the tissues from infection due to no fault of the defendant. Much professional evidence was taken upon the likelihood of hernia from infection and lowered vitality in such cases.

Dr. Hankins, called in after the child was removed from the hospital some 20 days subsequent to the operation, testifying for plaintiff, expresses the opinion that the operative wound had not been properly closed. Some other corroborative evidence appears. We avoid any expression of opinion upon the weight of the evidence, or discussion of details other than necessary to a decision upon the specific questions presented on this appeal.

We think a jury question was presented under the evidence on the issue of negligence vel non in the matter of closing and suturing the operative wound.

The testimony of Mrs. Holroyd to the effect that when the child was brought home she could see no signs of stitches having been made was admitted without error. Dr. Hankins' evidence tends to show that in the open condition of the exterior portion of the wound at that time visible signs of suturing should appear on inspection. That Mrs. Holroyd was not an expert witness would not disqualify her to testify as to whether she saw stitches or markings of the kind. Lack of professional experience would go only to the probative force of her observations.

Neither was this witness required to be an expert to testify whether there was any guaze or other drain in the wound when she saw it. Either gauze or a tube was the only type of drain claimed to be used by defendant. This evidence would seem to be harmless anyway in that defendant's insistence was the drain had been removed prior to the time Mrs. Holroyd saw the wound.

Miss Alice Wilson was the special day nurse engaged to nurse the child while in the infirmary. She testified as a witness for defendant. She had married in the meantime and testified under her married name, Mrs. Garrison.

Mrs Holroyd, called in rebuttal, testified that she met Miss Wilson on the street soon after the child was...