Prewett v. Philpot

• Decision Date: 26 April 1926
• Docket Number: 25503
• Citation: 107 So. 880,142 Miss. 704
• Court: Mississippi Supreme Court
• Parties: PREWETT v. PHILPOT et al. [*]

107 So. 880

142 Miss. 704

PREWETT v. PHILPOT et al. ^[*]

No. 25503

Supreme Court of Mississippi

April 26, 1926

Division A

1. PHYSICIANS AND SURGEONS.

Surgeon must exercise reasonable care when operating to prevent hurtful foreign matter getting into and remaining in wound.

2. PHYSICIANS AND SURGEONS. Leaving open window during operation, whereby bugs got into wound, authorizes finding of negligence, in absence of reasonable explanation.

Leaving open or opening window during operation, whereby small bugs got through the screen and into the wound, authorizes finding of negligence, in absence of reasonable explanation for the opening.

3. PHYSICIANS AND SURGEONS. Weight of testimony that it would not be negligence to raise window during operation held for jury.

Weight and sufficiency of testimony, not objected to, that witness did not think it would be negligent to raise window during a surgical operation "on an average day in June in this country," would be for jury.

HON. T E. PEGRAM, Judge.

APPEAL from circuit court of Chickasaw county, HON. T. E. PEGRAM Judge.

Action by Cortez Prewett against Dr. V. P. Philpot and another. From a judgment on a verdict directed for defendants, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

S. H Long, for appellant.

I. The point at issue in this case is: Whether or not it is negligence per se to leave foreign substance in a wound from which infection arises; and if it be proved that such was the case, if it does not then devolve upon the surgeon to exculpate himself and that the doctrine of "res ipsa loquitur" applies to the extent that the fact that the bug gets in the incision shows that negligence existed.

We cite in support of this view. Zilke v. Johnson, Ann. Cas. 1913E 1005; Saucier v. Ross, 112 Miss. 306; Harris v. Fall, 3 Negligence Compensation Cases Ann. 176; Gillett v. Tucker, 93 A. S. R. 639, and exhaustive note; Davis v. Rodman, 13 A. L. R. 1463; Davis v. Kerr, 46 L. R. A. (N. S.) 611; Palmer v. Huniston, 45 L. R. A. (N. S.) 640; Harris v. Fall, 27 L. R. A. (N. S.). 1174.

There can be no contention that we did not prove that the bugs came out of the wound and that the only opportunity they had of getting in was during the operation or while in the hospital. The operation was not urgent; the doctor had already put it off four or five hours; and, certainly, it was negligence to continue an operation when the room was full of bugs. The circumstances show that the room was full of bugs before they had begun to give ether.

II. Each and every reason given for sustaining the motion for peremptory instruction is based on testimony which is incompetent and was objected to by the appellant.

Opinion evidence is admissible only on some point which cannot be explained to and grasped by the jury, making the opinion of an expert on this line valuable and helpful and this is allowed only when the opinion is not directly decisive of the main question which the jury is to determine. 5 Encyc. of Evidence, 526, and cases cited thereunder; 11 R. C. L. "Expert and Opinion Evidence" at p. 591; Foster v. State, 70 Miss. 755; Dillard v. State, 58 Miss. 368; Anonymous, 37 Miss. 54; Ice Company v. Holliday, 106 Miss. 714.

In the light of the fact that Dr. Reed was not even qualified as an expert on surgical questions, certainly his opinion evidence should have been excluded. And had he been competent to so testify, the proper procedure would have been to have examined him as to the methods used by other surgeons and then let the jury decide the issue. The court erred, we think, in examining Dr. Berry as to his opinion on whether it was negligent on an average June night to operate with the windows open--when the doctor had just testified in answer to a proper question that he did not open his windows except in extremely hot weather, and then said he opened only a window. Certainly the jury could have decided whether or not the windows were properly open if the surgeons testified to them that they did or did not leave theirs open.

J. H. Ford and Rush H. Knox, for appellees.

I. One assignment of error is that the court examined Dr. C. R. Berry regarding his opinion as to whether operating on any night in June with the windows open was negligence, and that the attorney for appellees examined Dr. Reid as to his opinion on the same matter and as to the care and caution in the operation.

An examination of Dr. Berry's entire testimony will show that not a single objection was made on the part of appellant throughout the entire course of his examination. He was introduced by appellant as an expert. It was also agreed at the outset that Dr. Reid was a qualified, licensed, practicing physician, a graduate of a medical college and an expert. There is no merit whatever in this assignment.

II. The last assignment is that the court erred in sustaining the motion to exclude the evidence and directing a verdict for the defendant.

How could the court have permitted this case to go to the jury under the proof shown by this record? Even if it could be said that a weevil and a little bug did work out forty-eight and fifty days after the operation and that they got into the wound during the operation, still the proof shows conclusively that every precaution was taken that could have been to prevent them from doing so, that no screen could keep them out, that they had to be contended with at every other hospital and that this hospital was first-class in every respect.

Appellant did not prove that the bugs got into the wound during the operation. No witness so testified. The proof showed the contrary. His own proof showed that such bugs could not have stayed in the wound and remained intact forty-eight or fifty days.

In cases such as the one at bar, the burden is upon the plaintiff to prove negligence on the part of the defendant and that the required care and skill were not exercised failing in which he must lose his case, as is fully illustrated in Gouner v. Brosnan, 155 La. 1, 98 So. 681, 21 R. C. L., p. 406, par. 49. To such cases the doctrine of "res ipsa loquitur" has no application, for such small things are not large enough to "speak for themselves" by their mere presence, but might get into the wound and be left in spite of the...