Osborne v. Frazor

• Decision Date: 05 January 1968
• Citation: 35 A.L.R.3d 338,58 Tenn.App. 15,425 S.W.2d 768
• Parties: , 35 A.L.R.3d 338 Dr. J. W. OSBORNE, Plaintiff-in-Error, v. Norman FRAZOR et al., Defendants-in-Error.
• Court: Tennessee Court of Appeals

Page 768

425 S.W.2d 768

58 Tenn.App. 15, 35 A.L.R.3d 338

Dr. J. W. OSBORNE, Plaintiff-in-Error, v. Norman FRAZOR et al., Defendants-in-Error.

Court of Appeals of Tennessee, Middle Section.

Jan. 5, 1968.

Certiorari Denied by Supreme Court March 18, 1968.

Hooker, Hooker & Willis, Nashville, Harsh, Kelly & Harsh, Gallatin, for plaintiff in error.

W. T. Goodall, Jr., Gallatin, for defendant in error.

OPINION

TODD, Judge.

This is an appeal by the defendant, J. W. Osborne, M.D., from a jury verdict and judgment for plaintiffs in a malpractice case.

The original plaintiff was Mrs. Effie Frazier (Frazor), but she died shortly after suit was filed, and her children, Norman Frazor and others, were duly substituted as plaintiffs.

The case has been tried three times. During the first trial a verdict was directed in favor of the defendant, Osborne, and another defendant, a hospital, on grounds of the running of the statute of limitations. In the published opinion of Frazor v. Osborne, Tenn.App., 414 S.W.2d 118 (1966) this Court affirmed the action of the trial judge in respect to the hospital and reversed as to the physician, holding:

Bearing in mind that there is evidence in this case to indicate that the professional relationship between the decedent and the defendant, Dr. J. W. Osborne, did not cease until the discovery of the imbedded sponge in May 1961, or sometime after that, it is our view that the evidence is such that the question of whether or not this profession relationship did continue until within one year of the filing of the suit is one that should have been submitted to the jury, and, if found by the jury that said relationship continued until within the statutory period of one year, the question of liability for negligence would have been for the jury to decide. 414 S.W.2d at 123.

Upon remand and retrial, the only defendant before the court was J. W. Osborne, M.D.

At the second trial the jury was unable to agree and a mistrial was entered. A wayside bill of exceptions was preserved by defendant and is a part of the record of this appeal.

At the third trial, a jury verdict and judgment were rendered in favor of the plaintiffs and against the defendant for $8,000.00 compensatory and $1,000.00 punitive damages. Defendant's motion for a new trial was overruled and he has appealed in error, assigning errors in both second and third trials.

There is evidence in the record of each of the trials to justify a finding of the following facts:

In December, 1952 deceased suffered a broken hip and was taken to the office of defendant who sent her to the hospital for surgery which was performed by a specialist, assisted by defendant.

Approximately twelve months later, deceased was readmitted to the hospital for additional hip surgery during which a surgical sponge was left in deceased's hip without her knowledge.

The incision failed to heal and produced pain, foul odor and drainage until May, 1961 when a few threads began to protrude from the wound, and the sponge was discovered and removed. The wound healed promptly thereafter.

During the entire period from surgery until discovery and removal of the sponge, the deceased was under the professional care of the defendant.

In accordance with the established practice, the second and third trials will be considered separately and in the order in which they occurred. Phipps v. Carmichael, 52 Tenn.App. 471, 376 S.W.2d 499 (1963).

The first assignment of error is:

1. It was error of the court, during the second trial, to overrule the defendant's motion to strike the second count from plaintiff's declaration.

The motion to strike and entire argument thereon was as follows:

'Your honor, comes now the defendant at this time and moves, first, to strike the Second Count of the declaration which is based upon a contractual relationship, which I think was not proved, and certainly not the theory of this lawsuit in the recent Court of Appeals case'.

After the first trial, appeal therefrom, and remand, the plaintiffs filed an 'Amended Declaration' which was apparently the basis of the second and third trials. Neither the second count of the first declaration, nor the second count of the 'Amended Declaration' refers to any contractual relationship. The designation of the second count in defendant's motion was evidently an inadvertence of counsel. We cannot correct counsel's inadvertence in this court by assuming that he meant what he did not say. Neither can we assume that during the trial trhe court and counsel understood that he meant what he did not say, namely, the third count of plaintiff's declaration.

Defendant has not mentioned this assignment in his brief and argument. However we have examined same and found it to be without merit. The voluntary acceptance of the physician-patient relationship by the affected parties certainly creates a prima facie presumption of a contractual relationship.

The relationship of physician or surgeon and patient is one arising out of a contract, express or implied. 70 C.J.S. Physicians & Surgeons, § 37.

The relation of 'physician and patient' is created when the professional services of a physician are accepted for a purpose of medical or surgical treatment, the relation being a contractual one, wherein patient knowingly seeks assistance of a physician and physician knowingly accepts him as a patient. Findlay v. Board of Supervisors, 72 Ariz. 58, 230 P.2d 526, 24 A.L.R.2d 841 (1951).

The Hippocratic Oath, by which every doctor is morally bound, assumes a pre-existing relationship with patient and physician, which relationship in its inception is basically contractual and wholly voluntary, created by agreement, express or implied, and by its terms may be general or limited. Agnew v. Parks 172 Cal.App.2d 756, 343 P.2d 118 (1959).

The general verdict in favor of the plaintiff, without separate verdicts on separate counts, is presumed to rest upon a valid count, and will not be set aside, even though one count be defective. 20--1317, 1318 T.C.A. and cases annotated thereunder.

The defendant's first assignment of error is respectfully overruled.

Defendant's second assignment of error is:

2. It was error for the trial court, during the second trial of this cause, to fail to sustain the defendant's motion for a directed verdict made at the close of all the evidence.

The motion, presented orally and preserved in the wayside bill of exceptions, appears to have been upon the grounds that there was no evidence of negligence to support a verdict for the plaintiff and that plaintiff's suit was barred by the statute of limitations. The brief and argument of defendant in this court does not mention statute of limitations. The evidence presented at the second trial is adequate to subject this insistence to the holding of this court on the previous appeal (quoted supra). Therefore the statute of limitations need not be discussed further. We shall confine our consideration to the propositions advanced in defendant's brief and argument, the first of which is:

I. The Standard of Care required of Physicians.

Defendant cites Redwood v. Raskind, 49 Tenn.App. 69, 350 S.W.2d 414 (1961) and Glover v. Burke, 23 Tenn.App. 350, 133 S.W.2d 611 (1938) for the general proposition that the standard of professional skill and care by which to measure the actions of a physician must be established by expert testimony. The brief and argument of plaintiffs appears to concede this general proposition of law in the following language:

'The dispute between the parties did not involve the question of defining the standard of care--that standard was clearly and undisputably defined by experts'. Appellee's argument, p. 16.

The initial inquiry is, therefore, what was the evidence at the second trial which defined the standard of professional care.

Dr. Don Eyler, a witness for the defendant, testified as follows:

Q. If Dr. Osborne testified that he insisted that Mrs. Frazor return to your office for additional examinations and so forth, and that he repeatedly told her that he could not take care of her hip but that he was only taking care of other ailments she had and that she should return to you, is that proper and reasonable care?

A. Yes.

* * *

* * *

Q. I'll ask you in your opinion as a specialist, an orthopaedic specialist, are you familiar with the skill and knowledge of the average general practitioner in the town of Hendersonville?

A. Yes.

Q. Do you think it would have been proper that Dr. Osborne probe or go into the wound that you were caring for on Mrs. Frazor?

A. Well, I stated this before in a deposition in my office, and my feeling about the matter is that I would prefer that he would send the patient back to me since it was my case. Some general practitioners are, I should say, bolder than others; but if one of my patients had a draining sinus and if it didn't clear up in a reasonable period of time, I would have preferred that the patient be sent back to me rather than have the general practitioner operate on the patient in any way. (WBE 82, 83)

Q. Doctor, as Doctor Osborne visited this lady as a general practitioner, should he have discovered that gauze on the visits that he made?'

A. Well, that's kind of putting me on the spot. As I said, when a physician sees a draining sinus, he suspects infection or foreign body. * * * (WBE 57)

The testimony of the defendant himself is somewhat enlightening as to his own estimate of his duties.

'I had not been trained in major orthopaedic surgery; knew nothing about it, and certainly never attempt to do something in my medical practice that I have no training for. (WBE 103)

* * *

* * *

Q. According to your memory did you call Dr. Eyler about this?

A. I did. (W.B.E. 106)

Q. Did you insist that she go back for the care of her hip to Dr. Eyler?

A. I certainly did.

Q. Did you tell that to the family?

A. To the family and to the patient repeatedly. (W.B.E. 108)

My diagnosis was osteomyelitis, which...