Robertson v. Copeland, 40540

• Decision Date: 21 October 1957
• Docket Number: No. 40540,40540
• Citation: 97 So.2d 512,232 Miss. 1
• Parties: Mrs. Laverne D. ROBERTSON v. Dr. E. A. COPELAND.
• Court: Mississippi Supreme Court

Page 512

97 So.2d 512

232 Miss. 1

Mrs. Laverne D. ROBERTSON v. Dr. E. A. COPELAND.

No. 40540.

Supreme Court of Mississippi.

Oct. 21, 1957.

Pierce & Waller, Jackson, for appellant.

Watkins & Eager, Harmon Broom, Jackson, for appellee.

McGEHEE, Chief Justice.

This is a suit to recover damages for the alleged malpractice by the appellee, both in the performance and in the manner of the performance, of what is known as a complete hysterectomy on the person of the appellant, Mrs. Laverne D. Robertson. From the action of the trial court in granting a directed verdict in favor of the defendant Dr. E. A. Copeland, the plaintiff appeals. The sole question involved on this appeal is whether or not the defendant was entitled to a peremptory instruction in his favor at the close of the plaintiff's testimony.

The plaintiff introduced the defendant as an adverse-party-witness, and during the course of his examination the hospital records which he had kept, supervised or approved, and which he relied upon as being correct, were introduced in evidence at the instance of his own counsel. On the basis of this hospital record pertaining to the plaintiff's case and the testimony of the defendant in regard thereto, two other local surgeons testified at considerable length, both as to whether the operation should have been performed at all at the time it was performed under the circumstances disclosed by the defendant's hospital records and his testimony, and as to whether or not the defendant had exercised that degree of skill and care that was reasonably necessary and proper under standard procedures followed by other surgeons in the area of his practice. The plaintiff also testified in her own behalf.

After reviewing at great length and in considerable detail in conference, the testimony of the defendant and the expert testimony of the other two surgeons, we have concluded that the hospital records and the testimony of the defendant on the one hand and the testimony of the other two surgeons on the other hand were in such conflict on a number of the material points at issue as to make the case a proper one for submission to the jury.

One of the other two expert surgeons introduced by the plaintiff began treating her about seven weeks after the operation had been performed on March 9, 1954, and he testified, after treating her until July 15, 1954, as to what was necessary to be done in an effort to rectify the condition in which she had been left after the said operation by the defendant, as complained of. We think that his testimony and that of the other expert surgeon, when...