Pappa v. Bonner
| Decision Date | 24 July 1958 |
| Docket Number | 5 Div. 617,5 Div. 616 |
| Citation | 105 So.2d 87,268 Ala. 185 |
| Parties | Joseph PAPPA, pro aml, v. Dr. G. W. BONNER. Louis V. PAPPA v. Dr. G. W. BONNER. , |
| Court | Alabama Supreme Court |
Paul J. Hooton, Roanoke, and Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
These are appeals by the plaintiffs in two cases (consolidated for trial below and submitted here on one record) from judgments rendered on jury verdicts following the giving of affirmative charges, with and without hypothesis, for the defendant in each case. In 5 Div. 616 the plaintiff is Joseph Pappa, a minor about 5 years of age, who sues by his next friend, Louis V. Pappa, his father. In that case damages are claimed for injuries allegedly sustained as a result of the negligence of the defendant doctor or of his nurses, during or following an operation for removal of plaintiff's tonsils. In 5 Div. 617 the father, Louis V. Pappa, seeks recovery of damages for doctor's, medical, nursing and hospital bils and for loss of services of his son growing out of the same occurrences. The defendant in each case is Dr. G. W. Bonner, who performed the operation and also operated the hospital involved.
The complaints in both cases are essentially the same except for appropriate changes in plaintiffs and the elements of damages claimed. Each complaint originally consisted of counts 1 through 8. By amendment, counts 2-A, 2-B and 9 were added to each complaint. The defendant filed a plea of the general issue in each case. The cases were then tried together upon all of the counts. The counts in each complaint may be summarized as follows:
Count 1 is based upon the defendant's negligence as a physician and surgeon in the performance of the operation.
Count 2 is based upon defendant's negligence as a physician and surgeon in failing to observe and treat the child following the operation or to have one of his nurses observe and treat him.
Count 3 is based upon the breach of a contract between the child's father and the defendant as a physician and surgeon, which contract, allegedly made for the child's benefit in the child's suit, obligated defendant to perform the operation and to treat the child afterwards until he recovered.
Count 4, like Count 3, is based upon a breach of contract, with the additional allegation that defendant breached the contract by failing to observe and treat the child following the operation.
Count 5 is based on defendant's negligence as the operator of a private hospital for failure of either the defendant or his nurses to attend the child following the operation.
Count 6 is based upon a breach of contract by the defendant as the operator of a hospital, it being alleged that the contract to render medical treatment was breached in that neither the defendant nor any of his nurses attended the child while he was under the influence of an anesthetic following the operation.
Count 7 is based upon breach of contract against the defendant as the operator of a hospital, it being alleged that the contract to render medical treatment was breached in the improper administration of ether to the child.
Count 8 is based upon the defendant's negligence in the giving of ether to the child during the operation.
Count 2-A is the same as Count 2 and is based upon the defendant's negligence, but alleges that the negligence consisted in the defendant's negligent failure to observe and treat the plaintiff following the operation.
Count 2-B is the same as Count 2, but alleges that defendant's negligence consisted in his failure to have the child treated and observed by his nurses following the operation.
Count 9 alleges that the defendant, as a physician and surgeon, committed an assault and battery on the child while operating on him for the removal of his tonsils in that, without the prior consent of the child's parents, he removed the child's adenoids as well.
The evidence in the case, including that of expert medical witnesses, the parents of the child and the nurses at the hospital, is voluminous. When the evidence was all in the trial court gave affirmative charges, both with and without hypothesis, in favor of the defendant in both cases. Plaintiffs then filed motions for new trials, based principally on the giving of these charges, which motions were overruled. These appeals followed.
The decisive question to be resolved on this appeal is whether there is any evidence, or reasonable inference therefrom, that is, a 'scintilla' of evidence, that the defendant's negligence, or the negligence of his nurses under the doctrine of respondeat superior, was the proximate cause of the child's condition. It does not appear to be seriously contended that there was not sufficient evidence on the issue of negligence, both on the part of defendant and the nurses employed by him in the hospital, to have required submission of that issue to the jury. In this connection it should be noted that the plaintiffs do not seem to insist seriously that there was negligence in the performance of the operation itself. They principally rely on negligence which they contend occurred in failing to properly care for the child immediately following the operation, particularly during the critical first four hours. The disputed question is whether there is a 'scintilla' of evidence showing that such negligence proximately contributed to the child's condition.
The rule of our cases in malpractice suits is that there must be something more than a mere possibility--something more than one possibility among others--that the negligence complained of was the cause of the injury. There must be some evidence to the effect that such negligence probably caused the injury. McKinnon v. Polk, 219 Ala. 167, 168, 170, 121 So. 539. However, this does not eliminate the effect of Alabama's 'scintilla' rule. If there is a scintilla of evidence that the negligence complained of probably caused the injury there is presented a question of fact for the jury's determination. Carraway v. Graham, 218 Ala. 453, 460, 118 So. 807. See, also, Piper v. Halford, 247 Ala. 530, 25 So.2d 264; Torrance v. Wells, 219 Ala. 384, 390, 122 So. 322; Thaggard v. Vafes, 218 Ala. 609, 612, 119 So. 647.
The rule in Alabama is that in civil cases 'the question must go to the jury if the evidence or the reasonable inferences arising therefrom furnish 'a mere 'gleam,' 'glimmer,' 'spark,' 'the least particle,' the 'smallest trace'--'a scintilla" in support of the theory.' Alabama Great Southern Railroad Company v. Bishop, 265 Ala. 118, 123, 89 So.2d 738, 743.
And we have said that, 'in considering the propriety of the affirmative charge, we review the tendencies of the evidence most favorable to plaintiff, regardless of any view we may have as to the weight of evidence; and must allow such reasonable inforences as the jury were free to draw, not inferences which we may think the more probable.' Duke v. Gaines, 224 Ala. 519, 521, 140 So. 600, 601.
Considerable time has been spent and painstaking care given to a consideration of the evidence in this case. We see no necessity of detailing all of it which might have a bearing on the issue of proximate cause. It is sufficient to state that, in our view, the defendant's extra-judicial admission against his own interest, considered in connection with other evidence showing the lack of post-operation care and the serious illness of the child during the absence of such care, furnished at least a scintilla of evidence on the issue of proximate cause, thus requiring a submission of that issue to the jury.
The tendency of the evidence on behalf of plaintiffs was that no pre-operation examination was given the child; that in preparing the child for the operation he was given a shot of one-tenth grain of morphine although the proper dose for a child of his age was only one-sixteenth grain; that the shot of morphine was given too near the time of the operation, thus prolonging the period of unconsciousness after the operation; that the child was left completely unattended for over four hours immediately following the operation; that during this period no nurse or doctor entered the room; that this was a critical period demanding the utmost attention; that the accepted practice in the community called for constant medical attention at least until the patient is revived; that the child suffered from anoxia (general lack of oxygen) immediately after the operation due to a blockage in his throat which permanently damaged his central nervous system; and that if proper attention had been given to this condition immediately following the operation the child's injuries would not have resulted. The doctor who attended the child the next morning after the operation testified that the child's central nervous system was already injured at that time. He was asked this question: 'Then of all the things before that, why, when you get down to number five (anoxia) that is the only one that in your opinion could have caused his injuries, is it, doctor?' He answered: 'Well, it is the most logical.' He also later stated: 'In my opinion the cause of this central nervous system impairment, and this is an opinion, was anoxia.'
There was testimony that the child...
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