Moore v. Smith

• Decision Date: 20 January 1927
• Docket Number: 6 Div. 542
• Citation: 111 So. 918,215 Ala. 592
• Parties: MOORE et al. v. SMITH.
• Court: Alabama Supreme Court

111 So. 918

215 Ala. 592

MOORE et al. v. SMITH.

6 Div. 542

Supreme Court of Alabama

January 20, 1927

Rehearing Denied March 31, 1927

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by Janie R. Smith, as administratrix of the estate of George W. Smith, deceased, against Chalmers H. Moore and others. From a judgment for plaintiff named, defendant and another appeal. Reversed and remanded.

Testimony as to cause of infection following hypodermic injection held not evidence tending to show cause of infection contrary to unimpeached testimony.

The complaint shows that the plaintiff's intestate received medical treatment from the defendant physicians by hypodermic injections for malaria with which the intestate was affected as a proximate result of which he died eight days later. In count 1 it is averred that his death "was the proximate result of the negligence of the defendants, or their servants, agents, or employees, acting within the line and scope of their authority, in that the defendants or their servants, *** acting within the line and scope of their authority, negligently administered to plaintiff's said intestate medicine, or other treatment, which was improper or unsuited to the physical condition of the plaintiff's said intestate, or administered a treatment to (him) in a negligent manner."

Count 2 avers that the treatments were of such character, or administered in such way and manner, that, as a proximate result of defendants' unskillfulness therein plaintiff's intestate was caused to die.

Counts 3 and 4 are the same as count 2, with the additional averment that defendants were practicing medicine as partners at the time of the treatments.

The evidence discloses that plaintiff's intestate first applied to Dr. L.T. Kincannon for treatment. Dr. Kincannon kept him under observation for about a week, made an examination of his blood, found it be in a low state of vitality, and the patient suffering with a severe secondary anaemia and malaria. Dr. Kincannon prescribed a course of treatment consisting of cocodylate of soda, to be administered hypodermically, which is the only way it can be administered. Dr. Kincannon pursued this treatment from about the middle of the week preceding the 1st of December. According to Dr. Kincannon's understanding, he administered one treatment Wednesday of that week, one Friday, and would have administered one on the following Monday, but was called out of town on the Sunday preceding which was December 2d. The deceased applied at the office of Dr. Kincannon for treatment at the appointed time, and, he being out of town, the nurse or attendant in Dr Kincannon's office called Dr. W.L. Rosamond, who had offices about half a block away, to administer the treatment. Dr. Rosamond testified that he administered the cocodylate of soda in intestate's arm hypodermically with Dr. Kincannon's instruments, and after they had been properly sterilized. The hypodermic needle which Dr. Rosamond used, when not in use, was kept in alcohol. It was put in boiling water by the attendant in Dr. Kincannon's office and boiled. Dr. Rosamond removed the needle from the boiling water, sucked the cocodylate of soda with a syringe to which the needle was attached from a sealed glass container, cleansed deceased's arm, and then administered the hypodermic. The evidence is undisputed that the practice which Dr. Rosamond pursued was the proper practice. About twenty-four hours later the deceased called at Dr. Kincannon's office and complained of pain in his arm. The attendant called Dr. Rosamond at his office, and he directed the attendant to administer iodine to the arm.

The deceased's arm continued to grow worse, and he died on or about December 12th.

As to the source of this infection, and infections generally, Dr. Kincannon testified:

"I do not know what caused this infection in this man's arm. There is no way, to my knowledge, to find out what caused the infection in his arm. Infections can be set up in many ways. One is by entrance of the germ from the outside. Another is by the germ being carried by the blood stream to some point of lower resistance, either from tonsils or abscessed teeth or other localized infection in the body. The insertion of a needle in the arm might create a point of lower resistance at that particular point. If he had some other spot in his body that was weaker than that it would attack the weaker spot. The germ would attack the spot where the resistance was lowest. An infection could be carried through the lymph channels, which is another circulatory system. The lymph channels are passageways between the glands, the lymph glands throughout the body; and, if some gland had a germ localized in it, it would be transferred through these little passageways in the skin and be located within the layers of the skin. If you take all precautions against an infection, sometimes you don't know where it comes from. When all precautions are taken, infections are not very frequent, but you cannot tell in all cases. This anaemic condition that I speak of is considered to lower one's resistance. That has something to do with the setting up of infection. If the body is not able to kill the germs by its own power, why then you are liable to have infections. We have the germs present all the time, and we constantly battle between the germs and the resisting forces. Anaemia is a lowering of the resisting side, giving the germs more power to invade. Malaria also saps the vitality, and the blood would not be as healthy and red with malarial parasites in it as it can be without them. Anaemia is a secondary condition to some other trouble usually. Malaria is an organism. By that I mean that it is a germ disease. I do not think there is any way to establish what kind of a germ this was that caused this man to be infected. There is no way to establish definitely where it entered, or how it set up."

Dr. J.C. Smith, the only medical witness who testified for plaintiff, stated that he was called on to treat the intestate on December 4, 1923; that he went to his home and found him aching severely, with a high temperature, and some swelling of the arm; that the arm appeared to be infected, but he could not definitely determine where the infection was; that after hypodermics of cocodylate of soda the arm is not usually wrapped up, and the general practice is not to bind them up where a small needle is used, because usually the opening closes up right after the needle is removed. The witness further testified:

"It is not my judgment that the infection in this case was an infection of the skin. I think the infection was just a general infection. It seemed to be, in fact, an infection that affected the whole system. *** He had a high fever, and was aching all over. *** A hypodermic might be properly administered and the patient afterwards merely place his finger on it and rub the surface, either consciously or unconsciously, and infect it. *** In my judgment, and from my knowledge as a physician, I think a general infection does occur in the body that would become localized at one point, and that would produce the same result as if there was an original infection from the exterior."

Dr. Smith had stated on cross-examination that the intestate told him that the needle used by Dr. Rosamond was boiled before it was inserted in his arm. On redirect examination plaintiff's counsel asked:

"Now what else did he

(intestate) say about what happened in that room between him and Dr. Rosamond, and what he and Dr. Rosamond did, during the time he was giving you the history of the case?" Over defendants' objection on

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