Rann v. Twitchell

• Decision Date: 18 February 1909
• Citation: Rann v. Twitchell, 82 Vt. 79, 71 A. 1045 (Vt. 1909)
• Court: Vermont Supreme Court
• Parties: RANN v. TWITCHELL.

71 A. 1045

82 Vt. 79

RANN

v. TWITCHELL.

Supreme Court of Vermont. Orleans.

Feb. 18, 1909.

Exceptions from Orleans County Court; John H. Watson, Judge.

Action on the case by Harold Rann, by his next friend, against M. C. Twitchell, for malpractice. A verdict was ordered for defendant, and plaintiff brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, HASELTON, POWERS, and MILES, JJ.

Cook & Williams, for plaintiff.

Young & Young and A. G. Whittemore, for defendant.

POWERS, J. The plaintiff, a robust boy of 13 years, found a railroad torpedo near his house in Derby. He laid it on a plank and threw a stone upon it and exploded it, whereupon a flying fragment struck him under the inner corner of the right eye, causing the injury concerned in this action. This was April 19, 1905. The cut made in the lower lid of the eye was approximately an inch long, and at the upper end next to the inner corner of the eye the lid was cut off so that it hung down over the cheek, disclosing a wound under the eyeball into the socket of the eye. The boy was at once taken to Dr. Gaines of Newport, who took medical charge of the case and treated the injury for about a week. In the meantime Dr. Gaines became convinced that there was a foreign substance lodged in the eye or socket, and being uncertain whether or not or how far the eye itself might be involved, and not feeling competent to operate on the eye in these circumstances, he advised the employment of an eye specialist. The boy was taken to Sherbrooke for the purpose of consulting an expert, but the latter was away, so he could not be seen. After his return to Derby, and on April 25th, Dr. Gaines and Dr. Lund, who had been called in to assist, and who agreed with Dr. Gaines that there was a foreign substance in the eye, made preparations to operate for its removal. When it came to the point of beginning the operation, Dr. Gaines telephoned the defendant that the plaintiff had been injured by an explosion, and that some foreign substance had entered the orbit of the eye, and that he did not feel competent to remove it, and he arranged with the defendant to send the plaintiff to him for treatment. The plaintiff was thereupon taken to the Mary Fletcher Hospital at Burlington, where the defendant undertook the treatment of the case. He made no effort to learn anything further of the history of the case or its prior treatment. He did not attempt to determine by probe or otherwise whether or not there was in fact a foreign body lodged in the eye or its orbit— beyond an external examination more or less cursory in character, according to the evidence—though it is plain that the use of a probe would have easily and safely discovered the presence of the piece of tin which was afterwards removed. He gave the eye attention for a few days, and then sent the plaintiff home, assuring him that there was nothing in the eye, and with instructions to Dr. Gaines as to its subsequent treatment. The eye grew steadily worse until July 18th, when Dr. Gaines operated upon it and removed from the orbit a piece of tin nearly an inch long and about one-half inch wide, which was buried in the tissue to such a depth that its nearest point was about a quarter of an inch from the surface. The action is case for malpractice. It was originally brought against the defendant and the Mary Fletcher Hospital jointly, but during the progress of the trial, at the plaintiff's request, the court ordered a verdict for the hospital, and the trial proceeded against the defendant alone. At the close of the plaintiff's evidence the court ordered a verdict for the defendant. The propriety of this action of the court is the only question presented.

At the outset of the discussion the parties disagree as to the rule which is to be applied to this defendant to test the sufficiency of his diagnosis and treatment of this injury. The plaintiff claims that the evidence is such that the defendant must be judged as a specialist, while the defendant insists that there is no evidence to warrant the application of anything but the rule governing general practitioners. We quite agree with the court below that this defendant must be judged in this case by the more exacting rule which applies to specialists. Most of the evidence on this subject comes from the defendant hi...