Reeves v. Lutz

• Decision Date: 08 June 1915
• Docket Number: No. 14524.,14524.
• Citation: 191 Mo. App. 550,177 S.W. 764
• Parties: REEVES v. LUTZ.
• Court: Missouri Court of Appeals

177 S.W. 764

191 Mo. App. 550

REEVES v. LUTZ.

No. 14524.

St. Louis Court of Appeals, Missouri.

June 8, 1915.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by Albert L. Reeves against Frank J. Lutz. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Douglas W. Robert, of St. Louis, for appellant. Morton Jourdan and John Cashman, both of St. Louis, for respondant.

NORTONI, J.

This is a suit for damages said to have accrued on account of defendant's negligence. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

Defendant is a physician and surgeon, and the charge laid against him relates to an alleged malpractice. Plaintiff's wife was suffering from a cancer on her breast, and he employed defendant to remove it through a surgical operation.

The petition is in two counts, but on a former trial a recovery was had by plaintiff on the second count, while defendant prevailed on the first. We reviewed the case here, and approved the finding for plaintiff on the second count, but remanded it for further proceedings on the first. The present appeal presents the issue tried on the first count of the petition only. For an extensive statement of the facts of the case, see the opinion on the former appeal (Reeves v. Lutz, 179 Mo. App. 61, 162 S. W. 280), to which reference is made.

In performing the surgical operation, it was necessary to employ hot water bags about the patient in order to sustain her vitality during the while. The evidence is that defendant personally adjusted the hot water bag between the lower limbs of the patient immediately before commencing the operation, and that this was permitted to remain there without examination for as much as an hour and a half or two hours, for the operation, which was an extensive one, consumed so much time. As a result, one of the lower limbs of plaintiff's wife was severely burned, so as to entail such suffering upon her as to render her incapable of performing the usual duties of a housewife, affording the usual comfort and aid and society to her husband for a considerable time.

It appears the hot water bag was filled with water almost, if not quite, to boiling heat, and all the evidence is that it was a proper practice employed by the most enlightened members of the profession in this locality to use such hot water bags in like circumstances. The hot water bag was wrapped with a towel, and the patient was clad with a cotton flannel garment to protect the skin at the time, and such, too, was the usual practice. However, it appears the patient had varicose veins in the limb burned, and the evidence is that such renders one more liable to burn than if not so afflicted; moreover, defendant knew of this condition and of the likelihood to enhanced susceptibility to burns from that cause. After the hot water bag was placed between the limbs of the patient, she was covered with a sheet and then with two blankets and another, said to be a sterile sheet, in order to retain the heat with a view of sustaining vitality. There is evidence that sometimes such burps unavoidably occur through the kicking or moving of tho patient while the anmsthetic is being administered, even though the utmost care is used. And there is evidence, too, by way of cross-examination, that except as stated, it is not proper practice to permit the patient to be burned. There is evidence here that the patient moved and kicked some, but no examination was made during the entire time as to whether the hot water bottle was disturbed in its position so as to injure her during the time.

It appears that the court, over the objection and exception of plaintiff's counsel, permitted several expert witnesses to testify on behalf of defendant that burns are frequently' inflicted on patients during the operation. The questions so propounded, and to which answers favorable to defendant were elicited, are as follows: On examination of Dr. McCandless, the court propounded the following question to him, over the objection and exception of plaintiff: "In your own experience, and that which you have had with other surgeons, Doctor, have you noticed whether patients have been frequently, or otherwise, burned in such operations, by hot water bottles?" The doctor answered that such burns do occur. Then, too, over the objection and exception of plaintiff's counsel, the court propounded to Dr. Carson the following question: "Has it been your experience, and that of other surgeons, that there was danger at times of burning the patient with hot water bottles?" The doctor answered: "Yes, sir." These questions were objected to on the ground it was not competent to show that such burns may have occurred in other instances, for such surgeons may have been careless, and the matter...