Plunkett v. Hays

• Decision Date: 25 November 1929
• Docket Number: 13
• Citation: 21 S.W.2d 851,180 Ark. 505
• Parties: PLUNKETT v. HAYS
• Court: Arkansas Supreme Court

21 S.W.2d 851

180 Ark. 505

PLUNKETT v. HAYS

No. 13

Supreme Court of Arkansas

November 25, 1929

Appeal from Jefferson Circuit Court; T. G. Parham, Judge; reversed.

Judgment reversed, and cause remanded.

Isaac McClellan and H. K. Toney, for appellant.

Coleman & Gantt, for appellee.

OPINION

BUTLER, J.

Suit by J. P. Plunkett against George A. Hays for damages because of negligence resulting in the death of plaintiff's child; verdict directed for defendant; judgment entered in accordance therewith, from which this appeal is prosecuted.

The testimony in this case presents a most unusual and tragic occurrence. The defendant in the court below was and is a practicing physician in charge and control of the Jefferson County Clinic. In October, 1928, the wife and two children of the appellant, having been exposed to typhoid infection visited the Jefferson County Clinic, where they were administered the preliminary treatment for the prevention of typhoid by having a serum injected hypodermically in the muscular tissues. These injections were made by a Mrs Ferguson, one of the nurses in attendance at the clinic, and, after an interval of a few days, Mrs. Plunkett and her two children visited the clinic for a second administration of the anti-typhoid serum. They had spent the night before with relatives in Grant County, and, on their return to Pine Bluff, where they lived, went to the clinic, at about 2:30 o'clock in the afternoon, where a nurse gave each of them a treatment for the prevention of typhoid. One of the children was a girl about five years of age, who, within a short time after the injection of the typhoid serum, began to suffer great pain. Her mother conveyed her and the other child in their car to their home, and a physician was immediately called. Not only was the little girl, Chlorine, very sick by that time, but the mother and the other child also. They all developed a high temperature, Mrs. Plunkett's temperature registering about 104 degrees, the other child being very ill, while Chlorine was suffering from a temperature of about 108 or 109 degrees, accompanied by convulsions, and died about seven o'clock the following morning. After a time Mrs. Plunkett and the other child recovered from their illness.

The testimony of the mother and of the father, the appellant, was to the effect that all these persons were and had been in good health at the time of the administration of the typhoid shots, and that the child, Chlorine, who died, had never before that time been ill at all. The physician arrived at the home of the Plunketts some time in the afternoon, and remained in attendance upon the child during the night. Upon the death of the child the physician certified that the death was caused by protein poison. This, as explained by the physician, would be caused by "some food substance getting into the blood current." A sample of the child's blood was taken by the physician and given to a bacteriologist for examination, whose report showed that it contained no malarial parasites, and the count of the blood cells proved that the white blood cells were in greater amount than normal, which he explained would have been caused, among other things, from infection, but that such infection would not have been caused by typhoid. After the death of the child the appellant visited Dr. Hays' clinic and made inquiries of the doctor in an effort to ascertain the identity of the nurse who administered the typhoid shots. This information was refused by the doctor, the appellant stating in his testimony that the doctor gave as a reason for refusing this information that "I was looking for trouble, and that he (the doctor) did not want to get his nurses into any trouble, and that he was liable for what th...