Naveckas v. Jack

• Decision Date: 12 December 1930
• Citation: 112 Conn. 407,152 A. 580
• Court: Connecticut Supreme Court
• Parties: NAVECKAS v. JACK.

152 A. 580

112 Conn. 407

NAVECKAS v. JACK.

Supreme Court of Errors of Connecticut.

December 12, 1930

Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.

Action by Joseph Naveckas against Gabriel Jack to recover damages alleged to have resulted from unskillful and negligent surgical treatment of plaintiff's throat and nose by the defendant.The case was tried to the jury.From directed verdict for defendant, plaintiff appeals.

Error and new trial ordered.

Testimony of medical witness on cross-examination and in rebuttal regarding unskillful removal of tonsils held not so contradictory as to preclude submission to jury.

Frank W. Daley and Stanley Dunn, both of New Haven, for appellant.

Lawrence A. Howard and Cyril Coleman, both of Hartford, and Julius G. Day, Jr., of New Haven, for appellee.

Argued before MALTBIE, HAINES, HINMAN, BANKS, and AVERY, JJ.

HINMAN, J.

The plaintiff introduced evidence that in July, 1927, he consulted the defendant, a physician and surgeon, for relief from inability to breathe through his left nostril; he was, otherwise, in good health and condition; the defendant advised an operation on the nose and for the removal of part of a tonsil, and, later in the same month, performed an operation upon him.In the fall of 1928, being unable to breathe through his nose, he again consulted the defendant, who then performed a minor operation, using a local anæ sthetic, for enlarging the opening between the nose and the throat, and in October of the same year took him to another surgeon who removed a spur or ridge of bone from the septum of his nose.The defendant testified that when he examined the plaintiff his tonsils were diseased, the uvula or palate was swollen and pendulous, so that the tip touched the tongue, and the nose and back of the throat were inflamed; he removed the tonsils using the Braun method, and cut off about two-thirds of the uvula; also removed a small fatty tumor from the shoulder but performed no operation on the nose.

It appeared, from the medical evidence, to be substantially undisputed that, in the fall of 1928, and at the time of the trial, both tonsils were absent and the tonsil area taken up with scar issue, the uvula or palate was absent, and there were adhesions or joining together of the soft palate and the entire back wall of the pharynx, the breathing space from the nose to the throat, normally about an inch by an inch and a half in size being contracted to about the size of a lead pencil.There was a chronic inflammation of the nose and throat, and the larynx showed redness and thickening around the vocal cords affecting the voice.

The principal conflict of evidence was between the opinions of expert witnesses regarding the cause of these conditions and their significance as to the defendant's care and skill in performing the first operation.The plaintiff called a physician and surgeon who testified in detail as to the conditions and expressed the opinion that they were due to unskillful, extensive, and excessive cutting and lacerations of the mucous membrane, including cutting of the uvula unnecessary in the removal of tonsils.Several physicians and surgeons called by the defendant substantially agreed in an opinion that the amount of scar tissue, the adhesions, and the accompanying conditions were attributable to a constitutional tendency, in the plaintiff, to form scar tissue in an abnormal degree, with consequent contractions, and not to negligence or lack of skill in performing the operation.

Called in rebuttal, the plaintiff's expert expressed an opinion that the plaintiff did not have such a tendency to scar tissue, but that the existing formations were a result of injury and traumatism from " a hemorrhage, and accident, or some unskillfulness" in the 1927 operation.The final question of the cross-examination, " There is just about as much chance in your theory that this thing happened in one of those ways as in another, isn't there?" was assented to.

It appears from the statement in directing a verdict for the defendant, and in the memorandum on the motion to set aside,...