Ramsland v. Shaw

Decision Date05 May 1960
Citation166 N.E.2d 894,341 Mass. 56
PartiesGerald F. RAMSLAND v. John E. SHAW et al. Gerald F. RAMSLAND v. Anne McENANEY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Woodbury F. Howard, Lowell (Edward J. Duffy, Jr., Boston, with him), for plaintiff.

Leon F. Sargent, Boston (John F. Dunn, Boston, with him), for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.

SPALDING, Justice.

These are tow actions of tort for malpractice. In one, a physician and two surgeons are defendants, and in the other the defendant is a nurse. Verdicts in favor of all of the defendants were directed. To these rulings and to several rulings on evidence the plaintiff excepted.

The evidence reveals the following. The defendants are Dr. John E. Shaw, an anesthetist, Dr. Lewis S. Pilcher, the senior visiting surgeon at the Newton-Wellesley Hospital in 1954, and Dr. Francis H. Earthrowl who at that time was resident surgeon at that hospital. The defendant Anne McEnaney, a graduate nurse, was employed at the hospital as a 'nurse anesthetist.'

The plaintiff in April of 1943, when he was about eight years old, was admitted to the Newton-Wellesley Hospital. The provisional diagnosis on admission was 'Question [of] acute rheumatic fever.' The final diagnosis at the time of the plaintiff's discharge was 'Acute rheumatic fever without rheumatic heart disease.' Between 1943 and 1954, although the plaintiff returned to the hospital a few times for other ailments and check-ups, he lived an active, normal life. 'In high school the starred on the football team and was on the wrestling, basketball, and baseball teams.'

During the evening of November 4, 1954, the plaintiff, then aged twenty and a student at a business college, complained to his mother that he had indigestion and a pain in his side. Early in the morning of November 5, following an examination by his family physician, he was admitted to the Newton-Wellesley Hospital. Upon admission, the defendant Earthrowl and another doctor were of opinion that the plaintiff was suffering from appendicitis and that an appendectomy that morning would be necessary. At that time the plaintiff's mother told Dr. Earthrowl of her son's history of rheumatic fever. Dr. Earthrowl, in accordance with hospital procedure, informed Dr. Pilcher of his diagnosis, and Dr. Pilcher instructed him to 'schedule the case tentatively for an appendectomy.' At some time prior to 8 a. m. Doctors Pilcher, Earthrowl and Shaw 'reviewed the patient's history and physical findings in the hospital record,' and discussed the case. This discussion included the question of the proper anesthetic to be used, and a spinal was agreed upon.

At about 7:50 a. m., an appendectomy having been authorized by Dr. Pilcher, a spinal anesthetic was administered by Dr. Shaw, and at 8 a. m. anesthesia had been established in the plaintiff. Prior to anesthesia Dr. Shaw determined the plaintiff's blood pressure but did not record it. He testified that he determined the blood pressure after anesthesia dna that it was the same. At 8:10 a. m. Dr. Shaw turned the patient over to the defendant McEnaney (the nurse), informing her that a satisfactory level of anesthesia had been obtained and that he was satisfied with the plaintiff's condition. Thereupon, Dr. Shaw and Dr. Pilcher, who also was present when the anesthetic was administered, left the operating room, the plaintiff thereafter being under the care of McEnaney. Sometime between 8:10 and 8:20 (8:15 according to her testimony) McEnaney took the plaintiff's blood pressure, but 'couldn't get any reading'; there was no blood pressure. She administered oxygen under pressure to the plaintiff and informed Dr. Shaw of the absence of blood pressure. He directed her to give the plaintiff an injection of neosynephrine, which she did. Dr. Earthrowl administered an 'intravenous infusion.' He attempted to ascertain whether the heart was beating, 'but didn't hear any heart beat.' Upon Dr. Pilcher's arrival in the operating room, he and Dr. Earthrowl decided that the plaintiff's thoracic cavity should be opened for the purpose of massaging the heart. Such an operation was performed by Dr. Earthrowl and as a result the plaintiff's heart action and blood pressure were 'restored to a normal level.' The appendectomy was then performed.

The results to the plaintiff of the cardiac arrest are not in dispute. Because of it, his brain failed to receive the necessary supply of oxygen and serious damage resulted. The prognosis was that the plaintiff would 'have to be cared for as a dependent person as long as he lives.'

The plaintiff advanced several theories of negligence on the part of one or more of the defendants, and we shall consider them separately. No contention is made that there was negligence on the part of any of the defendants after the plaintiff's cardiac arrest was discovered.

1. The plaintiff argues that the three defendant doctors were negligent in choosing a spinal anesthetic. There is no evidence that this choice was bad medical practice in and of itself, and the plaintiff does not so contend. See Semerjian v. Stetson, 284 Mass. 510, 513, 187 N.E. 829. Rather the plaintiff bases his claim of negligence on the fact that at the time of the operation he was suffering from heart disease, and on certain medical testimony and excerpts from a medical treatise. 1 But we are of opinion that the jury would not have been warranted in finding that the plaintiff had a heart disease at the time of the operation. Upon the plaintiff's discharge from the hospital after his attack of rheumatic fever, the final diagnosis, as above stated, was 'Acute rheumatic fever without rheumatic heart disease.' In 1951 the plaintiff entered the hospital for a heart examination and the diagnosis was 'no heart disease.' Added to this was the evidence that the plaintiff had for years participated in vigorous athletic competition and at the time of the admission under consideration was playing 'semi-pro' football. There are, to be sure, other entries in the 1943 hospital report to be considered. These are: 'question [of] transient systolic murmur (brought out after exercise)'; and 'suggestion of some enlargement of the left auricle posteriorly. The possibility of a mitral lesion is suggested.' The hospital record in 1944 contains the following: 'There [is] a question [of] soft mitral systolic murmur not transmitted. No diastolic murmur, no thrill.' And a hospital record made in 1945 states that '[t]he possibility of a mitral lesion is suggested.'

The medical testimony with respect to the above entries came from Dr. Pilcher who stated that 'transient systolic murmur (brought out after exercise)' is quite common in a heart that is not diseased, although not characteristic of a normal heart; and that the entry 'question [of] soft mitral systolic murmur' indicated that the person examining the plaintiff was not able to tell whether or not the plaintiff's valve between the left auricle and left ventricle was in normal condition. Concerning the 1945 record, Dr. Pilcher stated that the examining physician was raising the 'possibility' of rheumatic heart disease, and that '[a] lesion in the area of the mitral valve during a history of rheumatic fever is an indication that complications of the disease have reached the heart.'

The following excerpts from a treatise ('Heart Disease') by Dr. Paul Dudley White were introduced: 'It is probable that in every case of rheumatic infection there is some heart disease, however slight of transient, and that in a certain percentage of the total number there is complete recovery with return to normal * * *.' 'Still another type of coronary disease, and one that is relatively infrequent, is that due to rheumatic * * * infection.' See G.L. c. 233, § 79C.

Viewing the foregoing evidence, as we must, most favorably to the plaintiff, we are of opinion that it leaves the question of the plaintiff's heart disease at the time of the operation in the realm of conjecture. The issue involved matters of a highly technical nature and to have submitted it to the jury on the foregoing evidence would have invited them to indulge in sheer speculation. The plaintiff's case is not improved by his mother's testimony that in 1943 the plaintiff had a 'rheumatic fever heart condition.' Her testimony on a subject of this sort could not take the place of expert testimony. See Berardi v. Menicks, Mass., 164 N.E.2d 544. Moreover, she also testified that on November 4, 1954, when the plaintiff was stricken with appendicitis the plaintiff 'was apparently in perfect health.'

2. The plaintiff contends that Doctors Pilcher, Earthrowl and Shaw were negligent in entrusting certain supervisory duties to the defendant McEnaney. More specifically, the plaintiff argues that the defendant doctors could have been found to be negligent in entrusting the plaintiff to the care of McEnaney during the thirty minute period after the spinal anesthetic had been administered, as that is the most dangerous time, that is, the time when a sharp drop in blood pressure can be expected. The duty of the defendant doctors in this respect is determined by the skill and care which members of their profession commonly possess and exercise in the locality where they practise. Semerjian v. Stetson, 284 Mass. 510, 187 N.E. 829. Berardi v. Menicks, Mass., 164 N.E.2d 544. And the burden is on the plaintiff to show that the defendants departed from this duty. McEnancy was a nurse with twenty years' experience in the field of anesthesia. There is no testimony to show that the conduct of the defendant doctors, in entrusting the plaintiff to a nurse with McEnaney's experience, after anesthesia and been obtained, was a departure from the accepted procedure then obtaining in the Newton-Wellesley locality.

3. The plaintiff further contends that all of the defendants were negligent in...

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13 cases
  • Voss v. Bridwell
    • United States
    • Kansas Supreme Court
    • September 18, 1961
    ...which he had a duty to perform; and that the mere failure to perform creates no negligence if there was no duty. Citing, Ramsland v. Shaw, Mass., 166 N.E.2d 894; and Emrie v. Tice, It is contended Bridwell's duties as the general surgeon do not encompass the administration of the anesthetic......
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    ...for finding a duty of discussion with and disclosure to the patient. The situation called for expert guidance. See Ramsland v. Shaw, 341 Mass. 56, 59-62, 166 N.E.2d 894. Cf. Stewart v. Worcester Gas Light Co., 341 Mass. 425, 434-435, 170 N.E.2d 330. This does not seem to us a case where 'ev......
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    ...See Withington v. Jennings, 253 Mass. 484, 486, 149 N.E. 201; Klucken v. Levi, 293 Mass. 545, 550--551, 200 N.E. 566; Ramsland v. Shaw, 341 Mass. 56, 63, 166 N.E.2d 894. There was no evidence that it was contrary to good medical practice in Worcester to permit hospital 'resident' physicians......
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    ...311 Mass. 249, 253, 40 N.E.2d 867 (1942); Berardi v. Menicks, 340 Mass. 396, 400-402, 164 N.E.2d 544 (1960); Ramsland v. Shaw, 341 Mass. 56, 61-62, 166 N.E.2d 894 (1960); Erban v. Kay, 342 Mass. 779, 174 N.E.2d 667 (1961); Haggerty v. McCarthy, 344 Mass. 136, 139-140, 181 N.E.2d 562 (1962);......
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1 books & journal articles
  • Defining the limits of a physician's duty to disclose in Massachusetts.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy No. 11, January 2006
    • January 1, 2006
    ...(Mass. 1961) (reaffirming rule that physician uses degree of learning, skill, and experience of doctors in locality); Ramsland v. Shaw, 166 N.E.2d 894, 899 (Mass. 1960) (holding duty of doctors determined by skill and care commonly exercised in locality); Bouffard v. Canby, 198 N.E. 253, 25......

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