Poor Sisters of St. Francis v. Long

• Decision Date: 01 May 1950
• Citation: 190 Tenn. 434,230 S.W.2d 659,26 Beeler 434
• Parties: , 190 Tenn. 434 POOR SISTERS OF ST. FRANCIS et al. v. LONG et al.
• Court: Tennessee Supreme Court

Page 659

230 S.W.2d 659

26 Beeler 434, 190 Tenn. 434

POOR SISTERS OF ST. FRANCIS et al. v. LONG et al.

Supreme Court of Tennessee.

May 1, 1950.

Rehearing Denied June 9, 1950.

Emmett W. Braden, Memphis, W. P. Armstrong, Jr., Memphis (Armstrong, McCadden, Allen, Braden & Goodman, Memphis, Albert F. Johns, Memphis, of counsel), for plaintiff in error.

John S. Porter, Memphis, Bailey Brown, Memphis, for defendants in error.

NEIL, Chief Justice.

The defendants in error brought separate suits in the circuit court of Shelby County to recover damages for personal injuries alleged to have been received by Mrs. Long while she was a patient in St. Joseph's Hospital which was being operated by Poor Sisters of St. Francis, Seraph of the Perpetual Adoration. The injuries complained of by Mrs. Long consisted of a compression of the eighth thoracic vertebra and a comminuted fracture of the humerus in the region of the left shoulder. She was in the hospital for the purpose of giving birth to her baby, Dr. J. R. Reinberger being her attending physician. The husband H. M. Long, sued to recover for loss of services of his wife and for medical and hospital expenses. The declaration in each case alleged:

'That injuries such as the plaintiff sustained are not incidental to and do not usually and customarily attend the birth of a child and plaintiff charges that she would not have sustained such injuries had the defendants been in the exercise of reasonable and ordinary care; that when said injuries were inflicted upon her she was unconscious and is unable to state the cause thereof, but specifically charges that at all times she was under the joint care of the defendants herein named and in that situation she specifically relies upon the doctrine of res ipsa loquitur; ¹

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'That plaintiff's pregnancy terminated in the birth of her baby, who was in excellent health and the plaintiff herself, prior to entering the hospital, enjoyed excellent health; that under these circumstances plaintiff charges that the burden is upon these defendants to explain the manner in which said severe traumatic injuries and illness were caused while she was unconscious and under the joint exclusive care and custody of these defendants who held themselves out as specialists in the treatment and hospitalization of maternity cases and who undertook the treatment and hospitalization of the plaintiff for a consideration at the time and place heretofore alleged;'

The defendants pleaded the general issue of not guilty. In response to the plaintiffs' motion that defendants be required to state their defense by special plea they pleaded as follows:

'That defendants deny the allegations of the ninth grammatical paragraph of Count I of the said declaration, and on the contrary affirmatively allege that while the injuries from which plaintiff, Mrs. Gertrude Long, suffered, if any, are not the normal accompaniment of childbirth, that infection and injury of this type are not infrequent as a result of childbirth, and can and do frequently occur as a result thereof, and without any symptoms which could, or, in the exercise of ordinary care, should indicate their presence to the attending physician, and that they can and do frequently occur without any negligence on his part, or on the part of the hospital in which the patient is treated, and, therefore, defendants specifically deny that this is a case in which the doctrine of res ipsa loquitur would apply.'

The defendants denied that the burden was upon them to 'explain the manner in which the injuries and illness of plaintiff, Mrs. Gertrude Long, were caused, but on the contrary the burden rested upon her to show that her injuries were the result of some negligence on the part of one or more of the defendants'.

The two cases were tried to a jury, the plaintiffs resting their right to recover solely upon the ground of res ipsa loquitur.

At the conclusion of the plaintiffs' proof the defendants moved the court for peremptory instructions upon the ground that there was no evidence of negligence and the rule of res ipsa loquitur did not apply. It was overruled. The motion was renewed at the conclusion of all the evidence and the trial judge again overruled it, to which action an exception was taken. There was a verdict for the plaintiffs. A motion for a new trial was seasonably made and overruled and an appeal prayed and granted to the Court of Appeals. That court affirmed the judgment of the trial court, and we granted certiorari. The errors complained of have been argued, and elaborate briefs filed by counsel for each of the parties.

The assignments of error, severally and collectively, raise but one question, i. e. the applicability of the doctrine res ipsa loquitur to the facts of the case.

There appears to be a difference of opinion between counsel as to whether or not this is a malpractice case. Whether or not it is such a case in a strict legal sense we think it is in the nature of an action based upon alleged malpractice.

By the weight of authority the application of the doctrine res ipsa loquitur is limited in medical cases. It seems to be the general rule in actions for malpractice, 'that there is no presumption of negligence from the mere failure of judgment on the part of a doctor in the diagnosis or in the treatment he has prescribed, or from the fact that he has been unsuccessful in effecting a remedy, or has failed to bring about as good a result as someone else might have accomplished, or even from the fact that aggravation follows his treatment'. Shain on Res Ipsa Loquitur, p. 467; Nelson v. Dahl, 1928, 174 Minn. 574, 219 N.W. 941; Inglis v. Morton, 1918, 99 Wash. 570, 169 P. 962; Ewing v. Goode, C.C.Ohio 1897, 78 F. 442, 443. In support of the text the author refers to the following statement by Chief Justice Taft in Ewing v. Goode, supra. (He was then U. S. Circuit Judge.) 'A physician is not a warrantor of cures. If the maxim, 'Res ipsa loquitur,' were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the 'ills that flesh is heir to."

There are many decisions in which the courts have held that an inference of negligence should not be indulged where the alleged wrongful treatment by a physician or surgeon involves a scientific exposition of the question by expert testimony. Laughlin v. Christensen, 8 Cir., 1 F.2d 215; Chubb v. Holmes, 1930, 111 Conn. 482, 150 A. 516; Robbins v. Nathan, 1919, 189 App.Div. 827, 179 N.Y.S. 281. In our own case of Quinley v. Cocke, 183 Tenn. 428, 192 S.W.2d 992, 996, it was held that the rule will not apply in malpractice cases 'where a scientific exposition of the subject matter is essential', citing Shain, supra, and cases. At the same time we recognized an exception to the rule, as where an unusual injury occurs, Meyer v. McNutt Hospital, 173 Cal. 156, 159 P. 436. In the latter case the plaintiff awoke from an anesthetic with her leg burned. In Evans v. Roberts, 172 Iowa 653, 154 N.W. 923, a piece of the patient's tongue was cut off in an operation for adenoids. The rule was properly applied in the case of Meadows v. Patterson, 21 Tenn.App. 283, 109 S.W.2d 417, where, following an operation for appendicitis, the patient's eye was cut, resulting in the loss of sight. Also in Lewis v. Casenburg, 157 Tenn. 187, 7 S.W.2d 808, 809, 60 A.L.R. 254, the patient received what is termed a third degree burn of her abdomen. 'It covered a space of 7 by 9 inches, and the flesh sloughed off practically to the lining of the intestine.' But even in this class of cases the Court cited a number of decisions to the contrary.

We think the plaintiff's declaration states a cause of action falling within the doctrine res ipsa loquitur, in alleging that she was within the exclusive care of the hospital and her attending physician and at a time when she was unconscious, following the birth of her child, she received the serious bodily injuries complained of. Meadows v. Patterson, supra; Lewis v. Casenburg, supra; Ybarra v. Spangard, 1944, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425; Johnson v. Ely, 30 Tenn.App. 294, 205 S.W.2d 759.

In all malpractice cases where the rule res ipsa loquitur is held to be applicable the jury may infer negligence in the absence of a reasonable and satisfactory explanation as to how the accident occurred. In other words the plaintiff would be entitled to go to the jury upon the inference of negligence unless the defendant offered some explanation of the injury which reasonable minds must agree destroyed the probative force of the circumstances which, as a matter of law, created a presumption of negligence.

Considering the right of the defendant to a directed verdict in a case of this kind, we find quite a diversity of opinion, the majority apparently holding that the res ipsa loquitur rule is nothing more than 'one form of circumstantial evidence'. 'A minority of the courts, however, have given res ipsa loquitur a greater effect than that of a mere permissible inference from the evidence. They have held that it creates a presumption, which always requires a directed verdict for the plaintiff if the defendant offers no evidence to meet it.' Prosser on Torts, pp. 303, 304.

In discussing the unending controversy as to whether or not the naked presumption of law may be weighed as evidence against the evidence of the defendant, Professor Prosser says: (20 Minn.Law Rev. 241, 265, 266) 'It seems clear that a permissible inference is always evidence, has weight as evidence, and remains to be considered by the jury as long as it may reasonably be drawn from all the facts presented. This is merely to say that circumstantial evidence is...