Pettigrew v. Lewis

• Citation: 26 P. 458,46 Kan. 78
• Parties: PETTIGREW v. LEWIS et al.
• Decision Date: 11 April 1891
• Court: Kansas Supreme Court

26 P. 458

46 Kan. 78

PETTIGREW v. LEWIS et al.

Supreme Court of Kansas

April 11, 1891

Syllabus

In an action for malpractice against physicians and surgeons to recover damages for an alleged unskillful and negligent operation upon the plaintiff’s eye, which resulted in injury and disease, the plaintiff must affirmatively prove that the injury and disease were produced by the operation and that the defendants did not exercise ordinary skill and care in performing the operation. Proof that the plaintiff’s eves have become weak and sore since the operation was performed is insufficient to establish a liability against the defendants.

Error from district court, Elk county; M. G. TROUP, Judge.

J. D McBrian & Son, for plaintiff in error.

A. M. Jackson, for defendants in error.

OPINION

JOHNSTON, J.

Sarah A. Pettigrew brought an action against J. F. Lewis and J. F Willard, partners as Lewis & Willard, to recover damages in the sum of $5,000, alleged to have resulted from a negligent, careless, and unskillful operation performed on her eye by Willard. She alleged that defendants held themselves out to the public as skillful surgeons, well qualified to perform operations upon the eyes and to treat the same; that she had an affection of one eye called "strabismus," and that the defendants undertook to straighten the eye, but performed the operation in such a negligent, careless, and unskillful manner that her eye became sore and weak, rendering her unable to complete her education or to perform ordinary household work. She avers that she has suffered and still suffers great physical pain in consequence of the unskillful operation and treatment, which has continued to increase since the time of the operation. The answer of the defendants was a general denial. The parties proceeded to a trial upon the issues formed, but after the plaintiff had concluded her evidence the court sustained a demurrer thereto, holding that it was insufficient to establish a liability against the defendants, or either of them, and gave judgment accordingly. The plaintiff complains, and urges that the testimony offered by her was sufficient to take the cause to the jury. The sufficiency of the evidence is the only question that we need to consider. Plaintiff offered proof to show that an operation was performed on her left eye by Dr. Willard on January 16, 1886; that prior to the operation her eye was strong and in good condition, except as to the affection of strabismus. The operation was successful so far as straightening her eye was concerned, but she stated that afterwards neither the eye operated on nor the right eye was as strong as before. She stated that some time after the operation she had what she called "a spell of the sore eyes." The lids were afterwards somewhat inflamed, and her eye watered when she was out in the wind or cold. When she returned to school she found her eyes were weak, and that it was necessary to bring objects closer to her in order to see clearly. It further appeared, however, that a father, brother, and sister were afflicted with sore and defective eyes. Was the proof sufficient to sustain a cause of action against the defendants? We agree with the district court that it did not show the operation to have been unskillfully and negligently performed, nor yet that the present condition of her eyes was the result of the operation that was performed. No proof was offered of the instruments used or the manner in which the operation was performed. No medical or scientific evidence was offered showing the cause of the present condition of the plaintiff’s eyes, nor that the defendants were negligent or careless in the performance of the operation. In fact no witnesses having special skill or knowledge with reference to the treatment of the eyes were introduced in behalf of the plaintiff. The burden rested on the plaintiff to show a want of due care, skill, and diligence in the operation, and that the defective condition now existing is the result of such want of care, skill, and diligence. The defendants were not held to the exercise of the highest degree of skill, nor as warranting a cure. It is clear from the evidence that there was no special contract to that effect; and, while something is claimed by the defendants on account of a variance between the pleadings and proof, we agree with the claim of the plaintiff that the doctor, having undertaken the operation, was held to the exercise of due care and skill. "His contract as implied in law is that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by others of his profession;...