Myrlie v. Hill, 6736

• Decision Date: 13 April 1931
• Docket Number: 6736
• Parties: MALINA MYRLIE, Respondent, v. L. G. HILL, Appellant.
• Court: South Dakota Supreme Court

58 S.D. 330

236 N.W. 287

MALINA MYRLIE, Respondent,

v.

L. G. HILL, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Herbert B. Rudolph, Judge # 6736—Affirmed Ray F. Bruce, Bailey & Voorhees, Sioux Falls, SD Attorney for Appellant. Mundt & Mundt, Sioux Falls, SD Attorneys for Respondent. Opinion filed Apr 13, 1931

MISER, C.

This is an action against appellant, a physician, for damages alleged to have been caused by the negligence of his office assistant. The negligence charged is that this assistant instilled into respondent’s eye a liquid which partially destroyed the sight. The appeal is from the judgment entered on a jury verdict and from orders denying defendant’s motion for judgment notwithstanding the verdict and denying defendant’s motion for a new trial.

There is a radical difference between the narrative of the occurrence on which the action is based as told by respondent and her witnesses and that as told by appellant and his assistant. We are of the opinion that the verdict in favor of plaintiff, respondent herein, is decisive of the major question presented by this appeal, unless it be, as contended by appellant, that “in a malpractice case, especially in an eye case, there must be expert medical testimony showing negligence, and also that the injury complained of resulted therefrom.”

In Ewing v. Goode (CC) 78 F. 442, 443, opinion by Taft, Circuit Judge, we find: “Before the plaintiff can recover she must show by affirmative evidencefirst, that defendant was unskillful or negligent; and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, she has presented no case for the consideration of the jury. The naked facts that defendant performed operations upon her eye, and that pain followed, and that subsequently the eye was in such bad condition that it had to be extracted, establish neither the neglect and unskillfulness of the treatment, nor the causal connection between it and the unfortunate event. A physician is not a warrantor of cures. If the maxim, ‘Res ipsa loquitor,” were applicable to a case like this, and a failure to cure were held to be evidence, however, slight of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ‘ills that flesh is heir to.’”

Respondent and her witnesses testified that on September 9, 1925, both lids of respondent’s left eye were swollen, the eye was partly closed, the conjunctiva was red. A local physician examined the eye and stated that she had a sty. At the trial he did not recall having then seen any corneal ulcer. On September 10th a neighbor woman turned the eyelid over, looked into the eye, and, although the lids were swollen, saw nothing wrong with the eyeball, either the white part or the dark part. In the afternoon of the 10th, respondent went to appellant’s office in Sioux Falls, S. D., twenty miles from her home in Hills, Minn. At that time her eye was nearly closed. Appellant examined the eye, said that it looked like a sty, lanced the upper lid, and squeezed the pus out. On his advice she did not return to her home, but stayed all night at appellant’s home. The next day, the 11th, appellant’s assistant treated the eye, after which appellant looked at it and said it was getting on fine. She had had no pain after he drained out the pus on the 10th. After the first night she stayed at the home of Mrs. Gulk. On the 12th she returned to the office where his assistant applied heat to the eye and put medicine in it. On the 13th, Sunday, she went to the office to see about going home. She could have seen good had she taken the bandage off. On the morning of the 14th he treated the eye again. On the morning of the 15th he took the bandage off and she was given the usual hot application. On that day, Tuesday, he told her to come again to the office on Wednesday when he would tell her whether he could take her home, as he had stated on Sunday he would do. She did not go to his office Wednesday morning to take a treatment for her eye was then in perfectly good shape. On Wednesday afternoon at his office appellant said: “Well, tomorrow, Mrs. Myrlie, we are all going to Hills.” While she was at the office Wednesday her son and daughter came there to find out why she had not come home on Tuesday. Appellant told them he would bring her home on Thursday. On Thursday morning she returned to the office. Appellant then said to her: “At five o’clock we are all going to Hills.” She replied: “That sounds good.” Over Mrs. Myrlie’s objection that she did not need any further treatment, appellant instructed his assistant to give her another treatment. After a hot application, the assistant put some medicine in respondent’s eye with an eye dropper. Respondent testified that the medicine burned like a hot poker; that it smelled like iodine with the odor of which she was familiar, that the medicine used in former treatments did not burn nor had she noticed its odor; that about five minutes later while “pretty near perishing with pain” she was told by the assistant that the doctor said she could go; that she left the office but came back because she could not see to get to the street car. That she told appellant she was blind in both eyes; that he then examined her eye and inquired of his assistant what she had put in her eye. She was still blind and sick after he washed her eye out. Later he took her to Mrs. Gulk’s and when he led her into the house Mrs. Gulk inquired as to what was the matter. To this Mrs. Myrlie replied that Dr. Hill’s office girl put the wrong medicine in her eye. Appellant then said to Mrs. Gulk: “Yes, she has got that in her head now.” To which Mrs. Gulk replied: “It looks suspicious to me, doctor, to go down town with two good eyes and come back blind.” Appellant then took respondent to the kitchen, washed out the eye again, and used some medicine that appellant had prescribed before. After that the pains in her eye got worse. She went to the hospital the following day where she was treated by appellant for over two weeks. Three or four days after she went to the hospital appellant told her that she had an ulcer on that eye. This was the first time he had mentioned an ulcer to her. After she left the hospital in Sioux Falls appellant treated her eye once. Her local physician treated it four times and then took her to a Minneapolis hospital where she was treated for four and a half weeks. Before the treatment on September 17th both of her eyes were feeling fine. She does not know whether the dropper with which the medicine was instilled was full but enough was put in the eye so it would run out and it caused brown stains on her handkerchief. Whether it stained her face brown she does not know because she was blind after that. Before the treatment she did not use glasses except to do fine work. Since the treatment she uses glasses most of the time. After that treatment she suffered great pain and lost weight. As to the condition of the eye before the treatment on the 17th she is corroborated by the testimony of Mrs. Gulk, Mrs. Gulk’s daughter, and respondent’s son and daughter. As to the condition on the afternoon and evening after that treatment she is corroborated by the testimony of Mrs. Gulk and daughter. That she had a corneal ulcer or abrasion on the cornea on the day following, that is, on September 18, when she entered the hospital, and that her present impairment of vision is due to a scar caused by an ulcer, is conceded.

Both appellant and his assistant deny as wholly false respondent’s narrative of the treatment given the eye on September 17th and of the events immediately following. Appellant’s office record shows that on September 10, when respondent went to appellant’s office, the tissues about the eye were swollen so that the eye was entirely closed. The record of that day recites:

“Impossible to see cornea or eyeball due to intense swelling. Diag. supra-orbital abscess, lanced with small cataract knife, large am’t of pus evacuated, eye dressed with moist antiseptic dressing, patient advised to go to hospital for further treatment.

“Sept. 11th, treat, at office, arg. hot compresses.

“Sept. 12th, treat. at office, arg. hot compresses.

“Sept. 13th, treat. at office, swelling down. Can open eye. Small corneal ulcer found on eye. Atrophine 1% arg. hot compresses.

“Sept. 14th, same treat, ulcer spreading slightly.

“Sept. 15th, ulcer touched with 10% mercurochrome, arg. and hot comp. cont’d.

“Sept. 16th, same treat. eye no better.

“Sept. 17th, Complained of more pain, arg. and heat cont’d and mercurochrome 10% “Sept. 18th, patient went to hospital.”

Appellant’s assistant testified that she made the foregoing entries on cards on the days the treatments were given. She was not at the office on Sunday, the 13th, which was the day, according to the office record, when the ulcer was discovered. She testified that the ulcer was discovered about two days after respondent first came in. Appellant testified that it was “about on Saturday, September 12th, that the swelling had subsided sufficiently to permit examination of the cornea.” He then found an ulcer and told her that she had an ulcer. He testified that he gave respondent a treatment on Sunday practically the same as before. He testified that he saw what his assistant put into respondent’s eye on the 17th. That he came into the room when his assistant was instilling the drops of argyrol into the patient’s eye. Because argyrol temporarily discolors the eye, he asked his assistant why she had dropped in the medicine before he had examined the eye. The assistant replied that respondent had been complaining so she thought she would begin the treatment. In fact, except for both parties testifying that on the...