Owens v. McCleary

• Decision Date: 12 March 1926
• Docket Number: No. 25116.,25116.
• Parties: OWENS v. McCLEARY.
• Court: Missouri Supreme Court

281 S.W. 682

OWENS v. McCLEARY.

No. 25116.

Supreme Court of Missouri, Division No. 1.

March 12, 1926.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

Action by William Owens against A. S. McCleary. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Frank M. Lowe, of Kansas City, for appellant.

Sam O. Hargus, of Kansas City, and W. H. Hallett and W. M. Bowker, both of Nevada, Mo., for respondent.

RAGLAND, P. J.

This is an action for malpractice. Plaintiff obtained judgment in the circuit court for $15,000, to reverse which defendant prosecutes this appeal.

The petition, after setting out preliminarily that plaintiff was afflicted with a mild case of piles, that defendant represented and held himself out as a physician specially skilled in the treatment of piles, and that as such physician undertook to treat plaintiff for that disease, charges negligence as follows:

"That in so doing (treating plaintiff) he negligently and carelessly caused to be inserted into the rectum of the plaintiff some sort of an instrument, the exact character of which is unknown to the plaintiff, and carelessly and negligently inserted an injection, the character of which is unknown to the plaintiff, but that the said instrument and the said injection were either not adapted to the proper treatment of the plaintiff's disease or that it was so negligently and carelessly administered that the plaintiff was then and there subjected to great pain, discomfort, and injury, resulting in the formation of ulcers and abscesses in the rectum of the plaintiff.

"The plaintiff says that, after the said careless and negligent treatment of the plaintiff by the defendant, as aforesaid, the said defendant failed and neglected to properly care for and treat the plaintiff in and about his said disease, but so negligently and carelessly neglected the treatment of plaintiff that infection in the rectum ensued, causing the plaintiff to suffer great pain and mental anguish for many successive weeks, during which time said ulcers and abscesses and infection continued to grow worse from day to day, during which time said defendant failed to make proper examination for the purpose of determining the condition of the plaintiff, as aforesaid, or attempting to discover and remove the cause of his said condition, and that, by reason thereof, the said plaintiff was reduced in health to the point of death, during all of which time he suffered excruciating pain, and that by reason of said infection, ulcers, and abscesses, the muscles and tissues in and about the rectum of the plaintiff were impaired and destroyed so that he has thereby suffered a permanent injury, and is unfit to perform any manual labor, or labor of any character, and that he will be for the remainder of his life permanently injured and unable to perform labor."

The issue of fact as to the negligence was framed for the jury in plaintiff's instruction No. 1 as follows:

"If you * * * believe and find from the evidence that the defendant did treat him for such disease by inserting some kind of an instrument into his rectum, and injecting some kind of serum or fluid into his rectum, and that, in making said treatment, the defendant carelessly and negligently injured the plaintiff, and subjected him to great pain and discomfiture, and thereby caused the formation of ulcers and abscesses in the rectum of the plaintiff, and that after said injury to the plaintiff as aforesaid, if you find he was so injured, the defendant carelessly and negligently failed to exercise reasonable care to provide proper treatment of plaintiff to relieve him from such injury caused, if any, and that, as a result thereof, said abscesses and ulcers continued to form in his rectum and grew worse, and caused him great pain and suffering, and that, as a result thereof, the plaintiff was greatly reduced in health, and continued to grow worse until the muscles and tissues in and about the rectum of the plaintiff were injured or impaired, then your finding," etc.

Appellant's chief contentions are: (1) That the trial court should have directed a verdict for defendant on the ground that the allegations of the petition were not supported by the competent evidence in the case; and (2) that the giving of instruction No. 1 was error, because, as alleged, the evidence was insufficient to take the case to the jury, and for the further reason that it did not require a finding by the jury of some specific act of negligence. These propositions call for the facts which the evidence as a whole tended to show either directly or by reasonable inference.

At the time respondent became a patient of appellant's he was afflicted with a mild case of piles. He was 46 years of age, strong, robust, and in good general health. During the preceding year he had been employed as a mechanic in a garage. His work had required at times heavy lifting and the exercise of considerable muscular strength. Prior to that he had worked at his trade of blacksmith. He had been afflicted with piles in a mild form for eight or ten years. While he had from time to time suffered some pain and inconvenience from it, it had never caused him any illness or loss of time from his work. Appellant had held himself out as a "rectal specialist." He was maintaining at Kansas City what his advertising matter designated as "the largest institution in the world devoted exclusively to treating rectal diseases." His slogan was: "Piles cured without surgery." Respondent received some of appellant's "literature," and wrote him. After a number of letters were exchanged, respondent, on February 2, 1921, went from his home at Nevada, Mo., to Kansas City, and put himself in appellant's hands for treatment. On the day of his arrival he was examined by appellant, and told that he had a mild case of piles. On the second day thereafter the treatment began. As described by respondent, it" consisted of inserting into his rectum a speculum, and then injecting some kind of fluid which burned — set him afire. One such treatment was administered each day. The pain caused by each exceeded that of the previous one. After a few days the pain became so constant and intense that respondent was unable to sleep at night. Presently he became very ill; he became bedfast; he developed a high fever. At the end of three weeks abscesses had formed in his rectum. On February 27th appellant opened the abscesses with a sharp instrument. This he did again on March 3d. Following each of the operations he did nothing further in the way of dressing and draining the wounds. On March 6th appellant called an ambulance, and sent respondent to a hospital. He remained in the hospital approximately 2 weeks, during which time he was extremely ill and suffered excruciating pain. He was then taken into a private home and attended by another physcian. After five weeks he was removed to his home at Nevada, but remained bedfast for five weeks thereafter.

Since receiving "treatment" at the hands of appellant, respondent has never been able to engage in manual labor which requires any physical exertion. He has at all times had to carry a cushion with him in order to be able to sit down. Just preceding the trial in February, 1923, he was subjected to a physical examination. The conditions disclosed are best described in the language of the specialist who made the examination:

"Just to the right of the rectum, I find he has an indurated area, or caked, to use the common expression, area, on the right side of his buttocks as big as my four fingers would be here. This goes down fairly deep, and upon pressure over this indurated area, and with a piece of cotton, I find I can squeeze out pus from his rectum. The sphincter — that is the contractor muscle — is very much relaxed; it's thick and hard. * * * His rectum is smooth and hard; hasn't got the normal folds of the normal rectum; it is loose; it feels more like a tube. * * * The sphincter muscle is the muscle at the end of the large bowel that controls the bowels. * * * I take it that this man will have to have another operation to get rid of that necrosed and abscessed tissue that he has got on the right cheek of his buttocks. He has partial loss of control of the sphincter muscle; but if that will get any better or not I can't tell; and I don't think anybody else can tell; it is probably 50 per cent. control now. * * * His pain will probably last as long as he has got the indurated and necrosed old abscess. I believe, after that is gone, probably in the course of a few years, this pain will be overcome."

With respect to the approved methods of treating piles and the one employed by appellant in treating respondent, Dr. George B. Norberg, a specialist in general surgery, testified:

"Q. Doctor,...