Prewitt v. Higgins
| Citation | 231 Ky. 678,22 S.W.2d 115 |
| Parties | PREWITT v. HIGGINS. |
| Decision Date | 26 November 1929 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Hardin County.
Action by William Higgins against Dr. J. V. Prewitt. Judgment for plaintiff, and defendant appeals. Reversed for a new trial.
Faurest & Faurest, of Elizabethtown, for appellant.
Haynes Carter, of Elizabethtown, for appellee.
William Higgins instituted this action against Dr. J. V. Prewitt to recover damages for an injury to his arm, caused, as he alleged, 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 bacteriological test that the infectious condition of the mouth was caused by a disease called "trench mouth." He recommended the neosalvarsan treatment. There is no intimation that the specialist was not competent or that his advice was not correct. It is not apparent how Dr Prewitt could have been more careful in ascertaining the causes from which his patient was suffering or the proper remedy to be employed for his relief. Feeling uncertain of his own judgment, he utilized the services of experts in the various lines to establish unerringly the accuracy of his diagnosis. The proof utterly fails to sustain the allegations of negligence respecting the diagnosis of the disease, or the determination of the doctor to use the particular medicine. It appears from the testimony of Higgins that...
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... ... Armstrong had prescribed Parlodel for PPLS for years in his practice with no adverse results. Citing Prewitt v. Higgins, 231 Ky. 678, 22 S.W.2d 115, 117 (1929), Dr. Armstrong asserts that, even assuming that the decedent died as a result of a ... ...
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