Nolan v. Kechijian .

• Decision Date: 23 March 1949
• Docket Number: Nos. 8974, 8975.,s. 8974, 8975.
• Citation: 64 A.2d 866
• Parties: NOLAN v. KECHIJIAN (two cases).
• Court: Rhode Island Supreme Court

64 A.2d 866

NOLAN

v.KECHIJIAN (two cases).

Nos. 8974, 8975.

Supreme Court of Rhode Island.

March 23, 1949.

Exceptions from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.

Actions in trespass by Amanda M. Nolan and Charles E. Nolan against Harry Kechijian for malpractice. On plaintiffs' exceptions to the grant of defendant's motions in each case for nonsuit.

Exceptions sustained and cases remitted for new trial.

Fergus J. McOsker, of Providence, for plaintiffs.

Francis V. Reynolds, of Providence, for defendant.

CAPOTOSTO, Justice.

These two actions in trespass were brought by a husband and wife respectively against the defendant, a physician and surgeon, for alleged malpractice. The wife's declaration is in two counts, one for assault and battery, and the other for negligence. In an action of trespass on the case the husband sued for consequential damages. The cases were tried together before a jury in the superior court and at the conclusion of plaintiff's evidence the trial justice granted defendant's motion for a nonsuit in each case. The cases are before us on the exception of each plaintiff to such ruling. Since recovery in the husband's case depends upon defendant's liability to the wife, we shall hereinafter treat her as the sole plaintiff, our decision, however, applying to both cases.

According to the testimony of the plaintiff and her husband, she consulted the defendant in April 1944 for pains in the region of her stomach on the left side under the ribs. At that time he advised her to go to Dr. William J. Butler for an X-ray examination, which she did. She stated that when she returned to the defendant he left the room to call Dr. Butler, although she was not present at such alleged conversation, and thereafter he told her and her husband that the spleen, which he indicated and described as ‘attached to the collarbone,’ was ‘hanging by a thread,’ and that such condition required an operation ‘to build up the ligaments' that held the spleen in place. Acting upon such representations and the assurance that the operation was not a serious one, she consented to have the doctor operate upon her for the condition that he had described. The husband thereupon paid him $150 on account of his fee of $250 and shortly thereafter the operation was performed. The plaintiff subsequently learned that the defendant had removed the spleen.

The husband testified that he talked to the doctor as he was leaving the hospital shortly after the operation; that the defendant was ‘highly agitated’ and on being asked how things had gone he said: ‘Not as well as I expected * * * Well, we had to remove the spleen’; that he started to walk away but then stopped and asked the witness if he needed any money; that upon receiving a negative answer the defendant said: ‘You can have your money back if you want it-the deposit that you made.’ Then the doctor went away. According to the plaintiff and her husband the defendant never sent a bill or made any other demand for the balance of his fee.

Doctor Butler's testimony in substance was that the spleen, which is held in place by three major ligaments, lies within the abdominal cavity in the posterior portion beneath the left diaphram and a little above the midway of the trunk. In the plaintiff's case he found that the spleen was ‘ptotic,’ that is, ‘fallen’ when the patient was in an upright position, and that he noted some adhesions holding it to the stomach. He denied telling the defendant that the spleen was attached to the collarbone, as plaintiff had implied in her testimony, and he further stated that he passed no judgment as to the strength or weakness of the ligaments that held the spleen in place.

Doctor Constant E. Schradieck, retired, the pathologist at the hospital when the operation was performed in 1944, testified by deposition. His testimony was to the effect that on the day following the operation the defendant informed him that in freeing the spleen of adhesions to the stomach ‘the splenic artery at the hilum was torn and large hemorrhage was encountered which had to be controlled by tying the vessel off. Then it was necessary to remove the spleen.’ He further testified that except for a ‘few fibrous...