Peck v. Hutchinson

• Decision Date: 19 May 1893
• Citation: 88 Iowa 320,55 N.W. 511
• Parties: PECK v. HUTCHINSON.
• Court: Iowa Supreme Court

88 Iowa 320

55 N.W. 511

PECK

v.HUTCHINSON.

Supreme Court of Iowa.

May 19, 1893.

Appeal from district court, Polk county; W. F. Conrad, Judge.

Action for damages arising from alleged malpractice. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.A. B. Cummins, James C. Hume, and George E. McCaughan, for appellant.

Henry S. Wilcox, for appellee.

KINNE, J.

1. Plaintiff, as guardian of Anna Peck, a minor, avers that in 1886 the defendant, who held himself out to the public as a physician and surgeon, especially skilled in the treatment of diseases of the eye, was employed and undertook to treat a diseased eye of Anna Peck; that he negligently resorted to a surgical operation, instead of using proper medical treatment, and, in performing said operation, negligently used a large knife, instead of an instrument adapted to that purpose; that he negligently and unskillfully undertook a painful operation on said eye without first giving the proper drug to render the patient insensible to pain, and negligently and unskillfully cut a long gash in and about the sight of the eye, and left said gash without proper treatment. He says that, in consequence of all of said negligent and unskillful acts, said Anna Peck, without fault on her part, suffered great pain, and lost the use of her eye; that, but for the said acts, the eye would have recovered. Damages in the sum of $5,000 are prayed. In an amendment to the petition, it is said that defendant was employed by Dr. H. R. Paige, with the knowledge and consent of Charles Peck, the father of said Anna Peck; that no arrangement was made fixing defendant's compensation, and he has not been paid anything for his services. It is also averred that the pain now exists and will continue. Defendant admits treating Anna Peck for a diseased eye, and that he performed a surgical operation upon the same, and denies all other allegations in the petition. Defendant also charges that the injury to plaintiff's ward, if any, resulted from her contributory negligence in carelessly moving her head during the operation, and in that her parents forbade the use of general anaesthetics upon said Anna while she was undergoing said operation.

2. Appellee files what he calls an “additional abstract.” After denying the correctness of appellant's abstract, it is said: “Appellee does not undertake to supply the evidence and other matters omitted from the said abstract.” Some matters are then referred to as having been omitted from appellant's abstract. Appellant moves to strike the additional abstract, for many reasons, among which that it does not undertake to amend the abstract, but is a statement of counsel's deductions and conclusions from the evidence. Rule 18 requires appellant to serve upon appellee “a printed copy of so much of the abstract of record as may be necessary to a full understanding of the questions presented for decision.” By rule 19, if appellee is not satisfied with the appellant's abstract, he may file such “further or additional abstract as he shall deem necessary to a full understanding of the questions presented to this court for decision.” The general rule is that the appellee should set out what he claims has been omitted. We have said that, when the appellant claims he has furnished an abstract of all of the evidence, “we will assume that he has, unless the appellee sets out additional evidence.” Miller v. Wolf, 63 Iowa, 236, 18 N. W. Rep. 889;Guinn v. Insurance Co., 80 Iowa, 350, 45 N. W. Rep. 880. Now, the additional abstract is filled with deductions and conclusions of counsel as to what the record is, which constitute no part of the evidence or record. No sufficient reason is shown for failing to set out the portion of the record which it is claimed was omitted. We have examined appellant's abstract in the light of appellee's so-called “additional abstract,” and find that many matters stated therein were in fact in appellant's abstract. The motion is sustained.

Appellee moves to strike out an additional abstract filed by appellant. The ground of the motion is that the paper was filed too late. There is no showing of prejudice by reason thereof to appellee. It does not appear that it has delayed the submission of the cause. The motion is overruled. The cause will then be determined upon appellant's abstract and additional abstract.

3. It seems that in December, 1885, the defendant was called by Dr. Paige to examine the eye of Anna Peck. That at this time there was a perforating ulcer of the left cornea, with protrusion of the iris, a small part of the iris, about the size of a grain of wheat, being outside the cornea, protruding from the eye. The external parts of the eye were watery, irritable, and spongy. That the ulceration spoken of was the result of the infection of conjunctivitis and blennorrhea. The defendant did not see the eye again until January 17, 1886. At this time there was greater protrusion in a marked degree, and very little sight in the eye. Defendant then advised the parents that without an operation the eye was absolutely lost; that he could not tell with certainty the result of an operation. It was consented to, and performed the next day. The patient was placed upon a lounge, her hands held, and also her head during the latter part of the operation. Near the end of the operation, and while the final incision was being made, the patient flinched, and the knife made a cut across the cornea in a diagonal direction. It is this cut which plaintiff claims destroyed the eye. Either by reason of the diseased condition of the eye, or by reason of the operation and cut, the sight of the eye was entirely lost. The diseased condition of the eye, as it existed prior to the operation, was caused by infection of the iris, either gonorrheal or blennorrheal, transmitted from the vagina to the eye. The operation was successful so far as the excising the prolapsed portion of the iris was concerned, but sight was not restored. There is much conflict in the testimony as to whether the defendant used an anaesthetic. Plaintiff contends he did not. Defendant claims that he was preparing to use chloroform, when the mother of the child forbade its use, whereupon he consulted with his colleague, Dr. Paige, as to the propriety of proceeding with the operation, using cocaine or local anaesthetics, and they decided that they could properly proceed using cocaine, which they did. The testimony tends to show that a patient may flinch or jerk in case of such an operation, even if a general anaesthetic is used. We have stated this much touching the condition of the child, the operation, and surrounding circumstances in order that a better understanding may be had of the points hereafter discussed.

4. Many errors are assigned. Some of them are purely technical, and without merit. In other cases the error, if any, was clearly not prejudicial. We can consider at length only those assignments which seem to raise questions of controlling importance. Against the objection of the defendant, plaintiff was permitted to read to the jury from “Wells' Treatise on the Eye” what that writer says as to the operation of “iridectomy.” This evidence was objected to as...