Rodgers v. Lawson, 9567.

• Citation: 170 F.2d 157,83 US App. DC 281
• Decision Date: 01 June 1948
• Docket Number: No. 9567.,9567.
• Parties: RODGERS et al. v. LAWSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

83 US App. DC 281, 170 F.2d 157 (1948)

RODGERS et al. v. LAWSON.

No. 9567.

United States Court of Appeals District of Columbia.

Argued December 5, 1947.

Decided June 1, 1948.

Mr. Jeff Busby, with whom Mr. Jeff Busby, Jr., was on the brief, for appellants.

Mr. John R. Daily, with whom Messrs. H. Mason Welch and J. Harry Welch, who entered appearances, were on the brief, for appellee.

Before GRONER, Chief Justice, and STEPHENS and CLARK, Associate Justices.

STEPHENS, Associate Justice.

This is an action for malpractice brought against the appellee, Dr. Huron W. Lawson, by the appellants, Mary F. Rodgers and Edgar J. Rodgers, husband and wife. Their complaint charged permanent injury and disfigurement of Mrs. Rodgers' right breast and pain and suffering, through failure of Dr. Lawson to use reasonable skill and care, and through use by him of unsterilized instruments, in treating Mrs. Rodgers after the birth of her child. It was sought by the evidence introduced by the plaintiffs to particularize inattention, refusal by the defendant to inform himself as to Mrs. Rodgers' condition, failure to make a proper diagnosis, inadequate operative measures and abandonment of the case. Mrs. Rodgers sought damages for herself. Mr. Rodgers sued for expenses alleged to be attributable to Dr. Lawson's neglect, and for loss of services and consortium of his wife. At the close of the plaintiffs' case, the trial court, on a motion for Dr. Lawson, directed a verdict in his favor upon the ground that there was no evidence either that he was negligent or that his conduct caused the injuries alleged.

The principles of law governing malpractice actions are well settled. A physician "must exercise that degree of care and skill ordinarily exercised by the profession in his own or similar localities." 3 Cooley, Torts § 473 (4th ed. 1932). Cf. Kasmer v. Sternal, 1948, 83 U.S.App.D.C. ___, 165 F.2d 624; Christie v. Callahan, 1941, 75 U.S.App.D.C. 133, 124 F.2d 825; Gunning v. Cooley, 1929, 58 App.D.C. 304, 30 F.2d 467, affirmed, 1930, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Cayton v. English, 1927, 57 App.D.C. 324, 23 F.2d 745; Levy v. Vaughan, 1914, 42 App.D.C. 146; Napier v. Greenzweig, 2 Cir., 1919, 256 F. 196. The burden of proof is upon a plaintiff to establish by substantial evidence departure from that standard and that such departure caused the injury complained of. The ultimate question on this appeal is whether the trial court correctly ruled that the plaintiffs had not sustained this burden.

There were three witnesses for the plaintiffs, Mr. and Mrs. Rodgers themselves, and a Dr. John H. Bailey. Their testimony was as follows:

Mrs. Rodgers testified that Dr. Lawson was retained for prenatal care, for the delivery of her baby, and for postnatal care. The baby was born on July 9, 1946, at Doctors Hospital in the District of Columbia, where Mrs. Rodgers remained until the 19th of the month. On the 14th she complained to the doctor that her right breast was sore during and after nursing. Again, on the 15th, she complained of this soreness. On those days Dr. Lawson made no actual examination of her breast; he informed her that such soreness was customary with a first baby. On the evening of the 15th, Mrs. Rodgers noticed that the baby was nursing blood. On the morning of the 16th Dr. Lawson examined her breast, and said that the nipple was cracked, that she should not nurse the baby on it, that ice packs should be applied; he prescribed also tincture of benzoin.¹ On the 17th and 18th of the month, Dr. Lawson visited Mrs. Rodgers, but he made no further specific examination of her breast until after she returned to her home on, as said above, the 19th. Thereafter her breast was throbbing and paining and getting larger and hard. Mrs. Rodgers and her husband talked to Dr. Lawson almost every day by telephone, describing her condition. On the 22nd, when told of the condition of her breast, he said that it appeared that infection was present, and ordered the treatment changed to hot Epsom salts packs. The doctor first came to the home, however, on the 25th of July. He then examined the breast and thereafter, with the assistance of another doctor for the administration of an anesthetic, made an incision for drainage. The incision disclosed a minor amount of pus. Thereafter until the 29th of the month, he prescribed hot Epsom salts packs and heat pads, and these were applied. The breast pain increased, however, and on the 29th Dr. Lawson prescribed penicillin, which was administered at regular intervals for two days. On the second of these, Dr. Lawson visited Mrs. Rodgers again at her home and on one occasion later. At that time he told her to come to his office the following week. This she did, during the first week of August. There had been some relief as the result of the penicillin, but in the meantime the other side of the same breast had "started up." At his office, Dr. Lawson gave Mrs. Rodgers a complete physical examination and told her that if she would continue to apply heat the breast would drain further through the opening made. She continued, however, to suffer pain, of which Dr. Lawson was informed. On August 13, she had a temperature, the "pounding and throbbing" had become so severe that she felt she must have relief, and she did not feel able to go to Dr. Lawson's office again. The doctor would not come to the house, and therefore Mr. Rodgers talked to him. Mr. Rodgers thereafter retained Dr. Bailey, on the recommendation of "Group Health." By appointment made by Group Health on the same day, August 13, Mrs. Rodgers went to Dr. Bailey's office — some five hours after the call to Dr. Lawson. Dr. Bailey examined her breast and made arrangements for an operation at Garfield Hospital. This operation he performed the same evening, incising the breast and inserting tubes for drainage. Mrs. Rodgers experienced some relief from the thumping and pressure soon after the operation. Dr. Bailey examined the incision daily, noted the amount of drainage, and changed the dressing. He also prescribed sedatives. Dr. Lawson had administered no sedatives.

Mr. Rodgers testified that about eleven o'clock on the morning of August 13 he called Dr. Lawson and told him that Mrs. Rodgers' condition was serious, that she was becoming hysterical from loss of sleep and continuing pain and should have immediate treatment. Dr. Lawson asked that she come to his office, stating that he was having office hours and could not himself come out, and that he had no associate or other doctor that he could send. Mr. Rodgers deemed it not practical to move Mrs. Rodgers, thinking her condition too serious. He therefore asked Dr. Lawson if he had any objection to another doctor's being consulted. Dr. Lawson replied, with some perturbation, "No, go ahead and consult another doctor" — that he would release the case. Mr. Rodgers then made a five o'clock appointment for Mrs. Rodgers at Dr. Bailey's office, and from there she went to Garfield Hospital where she was operated upon. She remained in that hospital twelve days, and some two or three weeks later returned for five or six days more.

Dr. Bailey testified that he was familiar with obstetrics. Upon examining Mrs. Rodgers he found that she had had one incision in the region of the nipple which had been draining for a week, and that a further area in the same region had been draining spontaneously. He found the breast tender in the upper quadrant and around the nipple, and it appeared to be elevated from the chest wall — a condition which could be caused by milk, pus, fat, blood or serum. Mrs. Rodgers had apparently had a fissure, a common condition in pregnancy, and from that a cracked nipple — the possible point of entrance of the infection, also common. Dr. Bailey did not open the incision already made, because that and the spontaneous drainage had apparently effected drainage of the area around the nipple. But a loculated mass in the lower part of the breast needed an incision, and one of a different type, and he accordingly incised the breast where it was attached to the chest and "freed up" the breast, i.e., elevated it, and put drains in both areas. He found loculated milk, that is, that the milk was in pools. Dr. Bailey saw Mrs. Rodgers and examined her breast daily while she was in...