Prewitt v. Higgins

• Decision Date: 26 November 1929
• Citation: 231 Ky. 678
• Parties: Prewitt v. Higgins.
• Court: United States State Supreme Court — District of Kentucky

231 Ky. 678

Prewitt v. Higgins.

Court of Appeals of Kentucky.

Decided November 26, 1929.

1. Trial. — Whether ruling of court refusing defendant's request for directed verdict was error depends upon whether there was any evidence produced by plaintiff tending to sustain the cause of action alleged by him.

2. Physicians and Surgeons. — In action against physician to recover damages for injury to arm claimed to have been caused by injection of neosalvarsan, evidence relative to negligence in diagnosing case and deciding to administer neosalvarsan held insufficient for submission to jury.

3. Physicians and Surgeons. — Doctrine of res ipsa loquitur is not ordinarily applicable in respect to injury by reason of treatment given by physician.

4. Physicians and Surgeons. — Negligence on part of a physician may not be inferred from the effect his medicine may have on the patient, since the bad result may have been caused by inherent bodily conditions of the patient or by something that doctor could not avoid or anticipate.

5. Physicians and Surgeons. — Degree of care required of physician is that of an ordinarily skillful and prudent doctor in similar localities, and a doctor is not an insurer of results.

6. Physicians and Surgeons. — In order to make out a case of "malpractice" against a doctor, it is essential that the evidence show unskillful or negligent practice, proximately resulting in injury complained of in petition.

7. Physicians and Surgeons. — Fact that an injury resulted from use of neosalvarsan, recognized and approved as a treatment for trench mouth, does not necessarily show negligence on part of physician either in selecting or administering the treatment.

Appeal from Hardin Circuit Court.

FAUREST & FAUREST for appellant.

HAYNES CARTER for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

William Higgins instituted this action against Dr. J.V. Prewitt to recover damages for an injury to his arm, caused, as he alleges, by the intravenous injection of neosalvarsan. A trial by jury resulted in a verdict for $750 in favor of Higgins upon which judgment was rendered. A new trial was requested and refused, resulting in this appeal by the defendant. A number of questions are presented by the record and urged in the briefs, but our conclusion upon one of them renders unnecessary consideration of the others, and they are accordingly reserved.

At the conclusion of the testimony offered by the plaintiff, the defendant requested the court to direct a verdict for him. The request was refused, and the ruling is assailed as erroneous. Its correctness depends upon whether there was any evidence produced by the plaintiff tending to sustain the cause of action alleged by him. Hanners v. Salmon, 216 Ky. 584, 288 S.W. 307; Leadingham v. Hillman, 224 Ky. 177, 5 S.W. (2d) 1044; Powell v. Galloway, 229 Ky. 37, 16 S.W. (2d) 489. The case for the plaintiff, as the petition discloses, was rested upon two grounds. It was claimed that the doctor was negligent in the selection of the substance and in the introduction of it into his blood. The exact language of the petition is: "that at the time plaintiff was suffering from severe headaches, and at his request, the defendant undertook to relieve him from such suffering, and in the treatment administered, the defendant injected some fluid or other substance into the right arm of plaintiff, and that by reason of the negligence and carelessness of the defendant in making said injection, and by reason of the negligence and carelessness of the defendant in using said fluid or substance, which was not the proper remedy for his said headache, the plaintiff's arm was caused to swell and become inflamed, and to become infected." If the petition intended to charge that there was a lack of care in selecting the particular portion of the fluid used in treating plaintiff, there was no evidence whatever to sustain the charge. It is not shown how, or when, or where, the neosalvarsan which was administered to the patient was selected or obtained. Neither is it shown that the medicine was in any respect deficient. If the petition meant to charge, as we think it did, that the doctor was negligent in diagnosing the case and in deciding to administer neosalvarsan, there is likewise a failure of the proof to sustain that charge.

The plaintiff had been suffering for weeks with an incessant headache, and consulted the doctor for a diagnosis and treatment. The doctor proceeded with great care to ascertain the source of the patient's suffering. He first caused to be made an examination of the urine, which disclosed some sinister symptoms, but a later analysis demonstrated that the condition had cleared, and the trouble from which the patient suffered was not caused by any infection of the kidneys. A blood pressure test was taken, and an oculist was consulted to ascertain whether glasses would afford relief. As these experiments failed to disclose the cause of the suffering, the doctor took Higgins to a dental specialist. Ulcers in the patient's mouth indicated that the suffering might be from that source. The dentist found and verified by a...