Pikeville Methodist Hospital v. Donahoo

• Court: Court of Appeals of Kentucky
• Writing for the Court: LOGAN, J.
• Citation: 299 S.W. 159,221 Ky. 538
• Decision Date: 25 October 1927
• Parties: PIKEVILLE METHODIST HOSPITAL v. DONAHOO.

299 S.W. 159

221 Ky. 538

PIKEVILLE METHODIST HOSPITAL
v.
DONAHOO.

Court of Appeals of Kentucky.

October 25, 1927

Appeal from Circuit Court, Pike County.

Action by Felix Donahoo against the Pikeville Methodist Hospital. From a judgment against the hospital, it appeals. Reversed and remanded.

Stratton & Stephenson, of Pikeville, for appellant.

Vanover & Vanover and F. P. Damron, all of Pikeville, for appellee.

LOGAN, J.

In his petition appellee alleged that he was injured in January, 1925, as the result of a fall which broke and fractured his right arm between the elbow and the shoulder; that he was placed in the charge of appellant, Pikeville Methodist Hospital, and put in the care of Dr. W. C. Gardner for medical and surgical treatment; that Dr. Gardner, acting for himself and for the hospital, undertook to give him medical aid and surgical treatment for his broken arm, and that after having done so Dr. Gardner placed him in bed, and "unskillfully, negligently, carelessly, and unprofessionally placed upon the forearm and hand of plaintiff's said broken arm, an electric heating apparatus or appliance, which was placed so close to the plaintiff's said hand and arm, and permitted to and did remain in such position for several hours, with sufficient heat in said electric apparatus and appliance to and did burn and cremate the flesh on the said hand and arm, and that by reason of said burning and cremating, caused by the unskillful, negligent, careless, and unprofessional conduct and acts of the said Gardner, as aforesaid, the skin and flesh quickly fell from his said hand and arm, and that the said Gardner thereby was caused to and did. wrongfully, unskillfully, and unprofessionally, amputate the said arm between the elbow and shoulder joint, all without consulting with plaintiff's physician, to wit, Dr. Z. A. Thompson, and without the consent and against the will of the plaintiff." The negligence alleged in the petition is directed at the negligence of Dr. W. C. Gardner, and unless he was the agent or servant of appellant there is no negligence alleged against appellant hospital.

Dr. Gardner demurred to the petition, and the demurrer was overruled. He filed his answer, which is first a traverse, and in a second paragraph he affirmatively pleads that he was employed by the employer of Donahoo to render surgical aid to him, and that he did so by giving his injuries the necessary surgical attention in accordance with the generally accepted practices of modern surgery; that after having so treated the injuries of appellee he was discharged from the hospital; and that appellee himself was then guilty of such negligence and carelessness in failing and...