Roberts v. Gale

• Citation: 139 S.E.2d 272,149 W.Va. 166
• Decision Date: 15 December 1964
• Docket Number: No. 12287,12287
• Court: West Virginia Supreme Court
• Parties: Elizabeth Ann ROBERTS, an infant, who sues by her mother and next friend, Ruth Roberts, v. Richard O. GALE.

Page 272

139 S.E.2d 272

149 W.Va. 166

Elizabeth Ann ROBERTS, an infant, who sues by her mother and next friend, Ruth Roberts, v. Richard O. GALE.

No. 12287.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 8, 1964.

Decided Dec. 15, 1964.

Syllabus by the Court

1. 'In an action for damages against a physician, for negligence and want of professional skill in the making of an examination, or in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill, resulting in injury to the plaintiff.' Syllabus, White v. Moore, 134 W.Va. 806 .

2. It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses.

3. When the plaintiff's evidence, considered in the light most favorable to him, fails to establish a prima facie right of recovery, the trial court should direct a verdict in favor of the defendant. Chauncey H. Browning, Jr., Charleston, for appellant.

Barley & Goode, Albert A. Barley, Welch, Hudgins & Coulling, Paul S. Hudgins, Bluefield, for appellee.

CAPLAN, Judge.

Elizabeth Ann Roberts, an infant, who sues by her mother and next friend, Ruth Roberts, instituted this action against the defendant, Richard O. Gale, a physician, for damages which she alleges she sustained as a result of the defendant's negligence in administering certain medical treatment. In the trial of this case the court, at the conclusion of the plaintiff's evidence, directed the jury to return a verdict for the defendant, entered a judgment for the defendant and dismissed plaintiff's cause of action.

The plaintiff here complains that such action of the trial court constitutes error. Although several assignments of error are relied upon for reversal of this case, full consideration of such assignments presents for determination a single issue. Did the plaintiff, in the presentation of her evidence, establish a prima facie case of negligence against the defendant, upon which the jury properly could have returned a verdict in her favor?

The plaintiff's primary allegation is that the improper application of dry ice to her face constituted negligence. She also claims that the defendant was negligent in failing to further treat her or advise that additional treatment was necessary. In order to determine the validity of the plaintiff's position it is essential to consider the evidence adduced at the trial.

Ruth Roberts, the mother of the plaintiff, testified that the plaintiff was born in the City of Welch on November 15, 1951; that at the time of her birth she appeared to be a normal, healthy baby; that approximately three weeks thereafter a small red spot about the size of a 'pin scratch' appeared on the left side of the infant's face; and that over the period of the next few weeks she observed that the red spot was growing. Being concerned with this blemish on her child's face, she took her to see Doctor Saunders, who advised her to have the child examined by Doctor Gale, the defendant herein.

Her further testimony reveals the following: When the plaintiff was approximately three months of age she, accompanied by her father, took the child to Doctor Gale's office. Doctor Gale looked at the child and told Mrs. Roberts that the red spot was a small blood tumor and that he would burn it off with dry ice. Upon obtaining a piece of dry ice, he shaved it to a point in preparation for its use on the child's face. After telling her that this treatment would result in a bad burn, the defendant applied the dry ice to the spot on the baby's cheek. It was applied with some force for over a minute, during which time the child cried and apparently suffered great discomfort. This treatment caused the plaintiff's cheek to become discolored over an area estimated to be the size of a quarter and a depression or hole in the tissue of her cheek became apparent. Also, a sore developed inside the child's cheek. Within a few days after this treatment the child's face began to swell and continued to swell for a period of approximately fourteen months. During this period she took her child to Doctor Gale several times but the defendant did not further treat the child, saying that 'mother nature would take it off'.

Describing the condition of the child, Ruth Roberts testified that 'Elizabeth Ann's face was blue, every vein in her eyes was broken, across her mouth, up in here and a big one behind her ear. Q. Was her face swollen? A. Yes, sir. Q. Had it continued to swell or had it reached a point where it was stopped? A. No, sir. It was still breaking.'

Mrs. Roberts' father also testified as to the application of the dry ice by the defendant. His testimony was similar to that of his daughter, although he estimated that the dry ice may have been applied for as long as two minutes. The testimony of other lay witnesses supported that of Mrs. Roberts as to the condition of the plaintiff after she had been treated by the defendant.

When it became apparent that the child's condition was not improving, her mother took her to Cincinnati, Ohio, where she was examined and treated by Doctor Esther C. Marting of that city. Doctor Marting, a radiation therapist, whose deposition has been made a part of the record, described the child's condition as follows: 'Well, this lesion consisted of a large puffy swelling on the left cheek, extending up onto the bridge of the nose and down into the upper lip. It had a bluish color. On the surface there was some splotches of bright red coloring. I think there was about, as I remember it, there was some scarring along the cheek, the lower part of the cheek.' She described the condition as a thick, cavernous type of hemangioma.

In her deposition she stated that she could not have known the condition of the child's face when Doctor Gale treated her; that the use of dry ice is an accepted method of treatment of a capillary hemangioma; that the growth on the child's face could not have been caused by the dry ice treatment; that there was no hole or perforation in the cheek when she saw her; that the only evidence of former treatment was some scar tissue on the cheek, but that the amount of scarring was not unusual; and that, in her opinion, the child had both the surface and cavernous types of hemangioma at the time she was brought to her for treatment.

It further appears from the deposition of Doctor Marting that she administered radium treatments to the plaintiff nine times between May 5, 1953 and March 30, 1956. These treatments caused considerable regression of the growth and, as a result thereof, the lesion was about one half of its original size. Doctor Marting then told the child's mother that she had accomplished as much as could be hoped for with radium and advised her to take the plaintiff to a plastic surgeon.

In accordance with this advice, Mrs. Roberts contacted Doctor Clyde Litton, a plastic surgeon in Charleston, and arranged to have plastic surgery performed on her daughter. The operation was performed on August 17, 1956. Mrs. Roberts testified that the operation resulted in a great improvement in the appearance of her child's face, but that two additional operations will be required.

During the trial several physicians were called as witnesses by the plaintiff. Also, the deposition of Doctor Marting, of Cincinnati, was read to the jury. The matters to which Doctor Marting testified have been related above. None of the other physicians called as witnesses had treated or examined the plaintiff. They were queried, on the basis of a hypothetical question, as to the propriety of the treatment administered to the plaintiff by Doctor Gale.

In response to the hypothetical question which set out many of the facts of this case and particularly those dealing with the actual dry ice treatment, Doctor Stephen Mamick stated that, in his opinion, the treatment was adequate and that other doctors in the area 'would probably do it in a similar fashion'. This witness had never treated a capillary hemangioma but said that the use of dry ice was an accepted method of treatment.

Doctor F. L. Johnston, upon being asked the same hypothetical question, testified as follows: 'It is my opinion that the treatment you describe is acceptable and that the result you describe is to be expected if you expect to cure the tumor. Q. So that we may be sure we understand you, Doctor, you are referring not only to the use of the dry ice but the method in which it was applied in this case? A. Yes. Q. For a surface capillary hemangioma? A. Yes.'

Doctor A. J. Villani testified that he had treated several patients who had capillary hemangiomas and that his method of treatment was the application of dry ice. While his testimony indicated that he may use the dry ice in treating a patient in a manner different from that employed by the defendant, he did not say that the defendant's treatment...