Sanders v. Smith

• Citation: 200 Miss. 551,27 So.2d 889
• Decision Date: 25 November 1946
• Docket Number: 36214.
• Court: United States State Supreme Court of Mississippi
• Parties: SANDERS et ux. v. SMITH et al.

27 So.2d 889

200 Miss. 551

SANDERS et ux. v. SMITH et al.

No. 36214.

Supreme Court of Mississippi

November 25, 1946

Roberson & Luckett and E. M. Yerger, all of Clarksdale, and John T. Smith, of Cleveland, for appellants.

Maynard Fitzgerald & Maynard, of Clarksdale, B. A. Green, of Mound Bayou, and W. W. Simmons, of Cleveland, for appellees.

L. A SMITH, Sr., Justice.

Appellants were the parents of Evelyn Sanders, their ten year old daughter, at the time of the sad and unfortunate events chronicled in this action of damages for the wrongful death of the child, allegedly due to the negligence of appellees connected with a tonsillectomy upon her. The operation was performed by appellee, Dr. Smith, at the hospital of the appellee, Knights and Daughters of Tabor, called The Taborian Hospital, at Mound Bayou, Mississippi. At the time, Evelyn Sanders was a normal child, who had never before been treated by a doctor. Dr. Smith was employed to perform the operation by appellants, which he did in the operating room of The Taborian Hospital. There was an anesthetist at the hospital named Gladys East, who administered the anesthesia.

The child was put to bed about eleven o'clock in the morning and the mother went to the room with her, withdrawing then to the reading room. About one o'clock p. m. she was returned to the bed in her room, where the mother went, finding Dr. Smith, Dr. Howard of the hospital staff, and nurses with her. At that time, Evelyn seemed to be all right, and Dr. Smith told the mother to go and get some lunch, that 'the baby is all right'.

After an uneasy absence of about twenty minutes at an unenjoyed lunch, the mother returned to the hospital and immediately repaired to her daughter's room. She noticed that she appeared abnormal, causing the mother forthwith to summon Dr. Smith from the nearby laboratory. He came and felt her pulse, and at once summoned the other doctors and the nurses. Oxygen was brought in and administered without favorable results, whereupon Dr. Smith announced that the child was dead. In her testimony, the motion said: 'He told me some medical name--I don't recall what it was--that caused her death.' Suit was brought against appellees for damages, appellants charging that 'a cause of action has accrued to them against said defendants for such damages as they have sustained by reason of the wrongful death of said Evelyn Sanders.'

Appellees filed a plea of the general issue and a notice under it of the conventional defenses general in such cases, and specific defenses appropriate to the special facts of this particular case. It is not necessary to set them out here. The record shows that at the first term after the filing of the suit, Dr. Smith was present at court, although in the meantime he had removed to Texas, and for reasons unnecessary to detail a nonsuit was taken by appellants, the declaration immediately refiled, and process served then upon him in the renewed suit while he was still in Mississippi. A subpoena could then have been served upon him as a witness, too, had appellants seen fit to do so, but it was not done. Neither is there a deposition from him in the case. The anesthetist was in Africa when the case was tried. No motion for a continuance was made, nor was a deposition from her in the case. The only witness at the trial was the mother, appellant, Ruth Sanders. At the end of her testimony, appellee Smith moved the court 'that there be a directed verdict in favor of Dr. Smith, for the reason that there has been no proof offered of any lack of care or skill * * * all that has been introduced is the fact that he operated on the child, and the child died.' A similar motion was made by appellee hospital 'for the reason that there is no evidence in this case on which to base a verdict. It has not been shown that the hospital omitted doing anything it ought to have done, and no evidence to show that the hospital did anything it ought not to have done. No negligence has been shown.' These motions were by the court sustained in a brief statement that 'Our courts have held, in the Berryhill v. Nichols case, and in subsequent cases, that to establish liability for a wrongful death, there must be a believable probability rather than a possibility; and in view of those cases, I must sustain both motions for a directed verdict.' The Berryhill et al. v. Nichols case is reported in 171 Miss. 769, 158 So. 470, and at page 773 of 171 Miss., at page 471 of 158 So., appears the following: 'It is essential as an element of liability under our wrongful death statute (Code 1930, § 510) that the negligence complained of shall be the proximate cause, or at least a directly contributing cause, of the death which is the subject of the suit. The negligence, and not something else, must have been the cause which produced or directly contributed to the death. Hamel v. Southern Ry. Co., 113 Miss. 344, 358, 74 So. 276. And, as in other cases, this essential element must be proved as a reasonable probability. To prove no more than that it was a possibility is not a sufficient foundation for the support of a verdict or judgment.'

Judgment was entered in favor of appellees here and appellants brought the case up on appeal. They have assigned only one error, which is, 'Appellants respectfully submit that the trial court erred in sustaining appellees' motion to exclude appellants' evidence and in directing a verdict in favor of appellees.' In support of this assignment, they place themselves upon the doctrine of 'res ipsa loquitur', saying, 'It is a matter of common knowledge that death does not ordinarily result from a tonsillectomy. Yet, Evelyn Sanders died shortly after a tonsillectomy was performed on her. Why she did so, neither we not appellants know. We submit that her parents are entitled to an explanation. And that the court erred in excusing appellants from making such explanation.'

In a recent treatise on the doctrine of res ipsa loquitur by Mark Shain, at page 1, borrowing from a noted English case, Scott v. London and St. Catherine Docks Co., 3 H&C 596, 13 W.R. 410, 11 Jur. (NS) 204, 34 L.J.Exch. 220, 13 L.T. 148, 159 Eng.Rep. 665, the doctrine is defined to be 'When a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, then the injury arose from the defendants want of care.' In Waddle v. Sutherland, 156 Miss. 540, 126 So. 201, 203, we said: 'Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence; not that they compel such an inference, but that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking. 'But it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense.'' However, in the cited case, the facts and details of the treatment were revealed in the evidence sufficiently to establish that the required skill and care was not brought to bear upon the condition under treatment. Third degree burns developed from double application of X-rays, in the process of professional treatment of eczema, resulting in amputation of both legs. These things spoke for themselves. The court refused instructions to appellant based on the doctrine of res ipsa loquitur, and the case was reversed for that reason.

Appellant relies here mainly upon a California case, Ybarra v. Spangard et al., 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258. In that case, during the performance of an appendectomy, and while the patient was under the influence of an anesthetic, he received serious injuries to his arm. In an earlier decision in the same case, the same court had held that the doctrine of res ipsa loquitur did not apply. Ybarra v. Spangard et al., Cal.App., 146 P.2d 982. But on the rehearing, it held, in the decision quoted by appellant, that it did apply to the facts of the case, because the injuries to the patient's arm were not the subject of the treatment or within the area covered by the operation. Why would the patient's arm receive injury during progress of an appendectomy?

The same California Court in Engelking v. Carlson, 13 Cal.2d 216 88 P. 695, 697, said, in effect, that the law has never held a physician or surgeon liable for every untoward result which may occur in medical practice. It requires only that he shall have the degree of learning and skill ordinarily possessed by physicians of good standing practicing in the...