Morrell v. Lalonde

• Decision Date: 27 March 1923
• Docket Number: Nos. 5718, 5719.,s. 5718, 5719.
• Citation: 120 A. 435
• Parties: MORRELL v. LALONDE et al. SAME v. LALONDE.
• Court: Rhode Island Supreme Court

120 A. 435

MORRELL

v. LALONDE et al.

SAME

v. LALONDE.

Nos. 5718, 5719.

Supreme Court of Rhode Island.

March 27, 1923.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Separate actions by Mary L. Morrell against Alphonsine J. Lalonde and another, and by Frank Morrell against Alphonsine J. Lalonde. Verdict for the plaintiff in each case. A new trial was granted unless both plaintiffs should remit a certain portion of the verdict, which they refused to do, and both plaintiffs and defendants except. Exceptions of both parties overruled, and both cases remitted, with directions.

Henry C. Hart, Hoyt W. Lark, and Green, Curran & Hart, all of Providence, for plaintiff Mary L. Morrell.

Charles A. Kiernan, of Providence, for plaintiff Frank Morrell.

William Dike Reed, of New York City, Huddy, Emerson & Moulton, of Providence, and Leonidas Pouliot, Jr., of Central Falls, for defendants.

STEARNS, J. These are two actions for negligence and malpractice, one of which is brought by Mary L. Morrell, hereinafter called the plaintiff, and the other by her husband, against Alphonsine J. Lalonde, a physician and surgeon, hereinafter called the defendant. In the first-mentioned case the United States Fidelity & Guaranty Company is joined as a defendant as insurer of the defendant against loss from legal liability in consequence of any negligence or malpractice. See Morrell v. Lalonde, 44 R. I. ——, 114 Atl. 178. The cases were tried together and resulted in the case of the wife in a verdict for $13,416, and for the husband in a verdict for $2,333. On petitions by defendants for new trials, the trial justice granted a new trial unless the wife remitted all of the verdict in excess of $8,500, and the husband all in excess of $1,500. Each plaintiff refused to remit, and the cases are here on exceptions of each of the plaintiffs to the granting of new trials and also on the exceptions of defendants.

At the time of the acts complained of, April, 1920, the plaintiff, a married woman, 59 years old, lived in Providence. The defendant conducted a private hospital in the neighboring city of Pawtucket. Both parties were of French ancestry. For a number of years defendant, who was plaintiff's family physician, had at various times treated plaintiff for different ailments. For more than 3 years, prior to April, 1920, plaintiff had been suffering from a rupture which finally resulted in strangulated hernia. Defendant had advised plaintiff that an operation was necessary and that any delay was dangerous, but plaintiff failed to take any action until her condition in April became so critical that she was convinced that an operation offered the only chance of saving her life. Defendant, in response to plaintiff's call, visited plaintiff at her home and advised her that an operation was necessary at once. Plaintiff states that defendant agreed to perform the operation and to call for her that night and take her to his hospital; that defendant did not call for her; and that on the following day she went unattended to defendant's hospital, where defendant later in the day performed an operation upon her. The defendant knew the facts of the case; that the necessary operation was one which required skill, judgment, and some courage. He was under no compulsion to act because of an emergency not anticipated by him. In view of his subsequent conduct, it is not easy to understand why he undertook to perform the operation. He made an unskillful opening into the abdomen and without attempting to do anything to relieve the obstructed bowel, after removing an accumulation of pus, sewed up the wound, told his patient she was going to die and that he could do nothing more to help her. Plaintiff's husband came to the hospital that evening, and later in the evening plaintiff was sent to her home, as she says, by the advice of defendant. Defendant denies this, and states that the plaintiff insisted on being carried to her home despite his advice to the contrary. Much stress is laid on the means of transportation secured by the defendant, which was an undertaker's automobile used generally for the transportation of coffins and the removal of bodies of persons deceased. The vehicle was inclosed and contained a removable stretcher. There is some evidence that this vehicle had before this time occasionally been used as an ambulance. Plaintiff knew the owner of the vehicle, and defendant says she and her husband were willing to use it in order to save expense. In any view of the facts, it was the duty of the surgeon to assert his influence and authority to induce and to require his patient to remain in the hospital and thereby avoid the risk to her life incident to any removal. He failed to discharge this duty to his patient in this respect. He also neglected to call on his patient after the operation, his excuse being that he was too busy in his hospital. He did telephone to the District Nursing Association in Providence, and as a result a visiting nurse for a short time for several days went to plaintiff's home and attended to the dressings of the wounds. But in the circumstances this did not relieve the defendant of his duty to look out personally for his patient after the operation. On the third day after the operation, plaintiff was taken from her home to the Rhode Island Hospital, where a second operation was successfully performed, and after six weeks' stay in the hospital plaintiff returned to her home.

The substantial questions raised are two, namely, the question of liability and the amount of the damages. The evidence is ample to sustain the finding of liability. Defendant deliberately, with full knowledge of the seriousness and delicacy of the necessary operation, undertook to perform the operation. For some reason, either from lack of judgment or perhaps from a realization of his lack of the necessary skill or from a lack of courage, defendant failed...