Quinley v. Cocke

• Decision Date: 02 March 1946
• Citation: 192 S.W.2d 992,183 Tenn. 428
• Parties: QUINLEY v. COCKE et al.
• Court: Tennessee Supreme Court

192 S.W.2d 992

183 Tenn. 428

QUINLEY v. COCKE et al.

Supreme Court of Tennessee.

March 2, 1946

Error to Law Court, Shelby County; J. P. M. Hamner, Judge.

Action for malpractice by Earl J. Quinley against Dr. E. W. Cocke and another. To review the affirmance of a judgment of dismissal, plaintiff brings certiorari.

Writ denied.

Granville Farrar and H. H. Honnoll, both of Memphis, for plaintiff in error.

Walter P. Armstrong, Albert Johns, and Emmett W. Braden, all of Memphis, for defendants in error.

NEIL Justice.

The plaintiff in error, who will be hereinafter referred to as the plaintiff, brought suit in the Circuit Court of Shelby County against Dr. E. W. Cocke and Gartly-Ramsay Hospital of Memphis for damages, both compensatory and exemplary. The declaration, which contains two counts, alleges the following facts:

In the first count it is alleged that the plaintiff entered said hospital as a pay patient on September 16, 1942, for rest and treatment for a nervous condition and other ailments, brought about principally by acute gall bladder attacks and acute pain and suffering resulting therefrom. He entered the hospital upon the advice of his attending physician, who also advised that he consult the defendant Dr. E. W. Cocke, who held himself out as being skilled in the treatment of nervous disorders.

It is further alleged that Dr. Cocke advised the administration of certain electric shock treatments and that he submitted to one of said treatments by Dr. Cocke, assisted by certain attendants, servants, etc., without injurious results. However, on September 21, 1942, a second treatment was administered by the defendant, assisted by several servants and attendants. It is then alleged that, after he was removed to a private room and upon regaining consciousness, plaintiff found he was suffering severe pain in the right hip and thigh; that this condition was called to the attention of Dr Cocke, but he ignored plaintiff's complaint until September 24, 1942, when an X-ray picture was made which showed his hip had been fractured. The declaration further charges that 'The equipment and instrumentalities that were used in administering the shock treatment, from which his said injuries and damages resulted, were under the exclusive care, custody, and control, of the defendants. That when properly used and in the exercise of due care and caution they caused and resulted in no injury to patients. That due to the negligent, careless, and reckless use of said instrumentalities and the negligent administration of said treatment in question by the defendants, their servants etc., plaintiff sustained the injuries and damages herein complained of.'

The second count reiterates the allegations of the first count and in addition thereto alleges that 'The defendants, their agents, etc., did not possess and exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by members of their trade, calling, and profession, in good standing in the same general locality.' In this count it was also alleged that the defendants 'did not use and employ ordinary and reasonable care and diligence and accepted methods and their best judgment in administering the treatment in question. They submitted plaintiff to an excessive amount of said treatment; they did not secure and protect him against possible injury from said treatment; nor did they employ the usual and accepted means and methods of avoiding injury from the reactions which were to be normally expected from such treatment.'

The last paragraph of this count reads as follows: 'They were further negligent in that they failed and refused to use the usual, customary, and accepted methods of diagnosis to ascertain the true facts concerning the kind, character, nature and extent of plaintiff's injuries and to properly diagnose and treat same despite his repeated complaints and requests for care and attention; all of which greatly contributed to his pain and suffering and aggravated his injuries.'

The defendant Dr. Cocke pleaded the general issue of not guilty. The defendant hospital moved the trial court to require the plaintiff to make his declaration more specific in many particulars. It is not important to specify them since the hospital is not now before the Court. For the same reason it is not necessary to state the nature of the pleas filed on its behalf. At the conclusion of the plaintiff's evidence, the trial judge, upon motion of the defendants, directed a verdict in their behalf. The plaintiff, after his motion for a new trial had been overruled, prayed and was granted an appeal to the court of appeals as to the dismissal of his case against the defendant Dr. Cocke. He prayed no appeal from the action of the court in dismissing the case as to the hospital.

The sole question raised on this appeal is whether or not the rule of res ipsa loquitur applies. It plainly appears from the declaration and the admitted facts that the plaintiff could not hope to have his case submitted to the jury otherwise than upon the inference or presumption under the aforesaid rule res ipsa loquitur. The court of appeals in a divided opinion affirmed the trial court. The plaintiff has petitioned this Court for certiorari upon the theory that both the court of appeals and the trial court were in error in ruling that the rule of res ipsa loquitur did not apply.

The only information we have as to the nature and extent of the shock treatment, as well as the method of administering it by Dr. Cocke and his assistants or attendants, is found in the testimony of the plaintiff. Mr. Quinley at the time of this treatment was about fifty-one years of age and had been employed as secretary for a number of years at Tech High School. He had been operated on for gall bladder trouble, as a result of which he became highly nervous. We infer from a reading of the entire record that his mind was affected. Acting upon the advice of his physician, he consulted Dr. E. W. Cocke who specialized in nervous and mental ailments. The plaintiff was asked:

'Q. What class of treatment was Dr. Cocke supposed to have administered to you? A. Electric shock treatment.'

It is clear from the testimony of the plaintiff that he knew the purpose of the electric shock was to throw him into a convulsion. He had been told about these shock treatments and he knew them to be very strenuous.

It appears there were no ill effects from the first treatment. The witness described the second treatment (and he had only two) by saying that as result of these shock treatments he received a violent electric shock. While the treatment is being given the patient is lying down on a 'treatment pad' with his head in a downward position. A certain amount of electric current is caused to pass through the head and body, as result of which the patient becomes unconscious and remains so for several hours. Mr. Quinley was asked:

'Q. As soon as the treatment starts, you go out and you know nothing else until you finally wake up in your own room? A. Yes, sir.'

Now according to his description, the electric device, from which the current passed into his body, was attached to his head. When asked what part the nurses and 'negro porters' take in administering the treatment, he said, 'They hold me.' Evidently they hold the patient due to the fact that he is having violent convulsions.

When the plaintiff regained consciousness following this second treatment, he stated that he had a severe pain in the hip joint. This pain was due to a fracture of the hip. There can be no doubt but that this hip fracture resulted from the severe and repeated convulsions due to the electric shock.

At the conclusion of the plaintiff's evidence, counsel offered to read a stipulation as to what Dr. Edwin J. Lipscomb would say concerning the nature and method, as well as the result, of administering the electric shock; also the treatment he administered to secure a union of the fractured hip. This stipulation was objected to upon the ground that Dr. Lipscomb was not qualified to testify as an expert on the method of giving the shock treatment. The stipulation shows the following: Dr. Lipscomb's specialty was that of an orthopedic surgeon and had been for thirty years; that during his experience he had occasion 'to treat two hip fractures resulting from shock treatment, one shoulder fracture, and had seen one spinal fracture, but did not give treatment therefor.' It is further stipulated that the witness 'is familiar with and has knowledge of the literature and reports of the medical profession in reference to the administration of shock treatments and has talked with various specialists who give such treatments, and that it is the witness' understanding and knowledge that fractures occur even with every precaution used to prevent them.' (Italics ours.) It was further admitted that Dr. Lipscomb had never seen the treatment administered and 'knows nothing about the technique of his own personal knowledge.'

Mr. Farrar, addressing the court: 'But he is not qualified as an expert to give the shock treatment. I admit he is an expert.'

Mr Armstrong, for the defendant, contended that, even though he had no personal knowledge of how the treatment is administered, he can give an opinion based upon his special knowledge of the subject which he has acquired from medical literature and other reliable sources. The trial judge permitted the stipulation to be read into the record. Following the introduction of the foregoing stipulation, the plaintiff read three written reports by Dr. Lipscomb, which was in lieu of his personal appearance and attendance upon court, regarding the nature of the plaintiff's injury and the treatment he gave him. In the...