Saunders v. Lischkoff

• Decision Date: 05 May 1939
• Citation: 188 So. 815,137 Fla. 826
• Parties: SAUNDERS v. LISCHKOFF.
• Court: Florida Supreme Court

188 So. 815

137 Fla. 826

SAUNDERS v. LISCHKOFF.

Florida Supreme Court, Division B.

May 5, 1939

Rehearing Denied June 1, 1939.

Error to Circuit Court, Escambia County; A. G. Campbell, Judge.

Action by J. S. Saunders against M. A. Lischkoff for malpractice in treatment of the plaintiff's eye. Judgment for defendant and plaintiff brings error.

Reversed.

COUNSEL

R. H. Merritt, Philip D. Beall, and Philip D. Beall Jr., all of Pensacola, and Carl T. Hoffman, of Miami, for plaintiff in error.

Watson & Pasco & Brown, of Pensacola, for defendant in error.

OPINION

PER CURIAM.

This is a case of malpractice. The record shows that the defendant during the year 1934 was a medical doctor and an ear, eye and throat specialist engaged in the active practice of his profession in the City of Pensacola, Florida. The plaintiff a man of a little more than fifty years of age, consulted and employed the defendant to diagnose an eye ailment or affliction with which he was suffering, and to treat, attend and care for him. The relation of physician and patient existed from April, 1934, until about December of the same year, when another eye specialist by the name of Dr. McLane was called.

The left eye of the plaintiff was giving him trouble and gradually growing worse when he consulted and employed the defendant around April 1, 1934. It was not thought at the time that the eye of the plaintiff was in such a serious condition but what it would readily yield to the proper treatment. The plaintiff, with the approval of the defendant, went to a general practitioner of medicine by the name of Dr. Bryans for a general 'check-up' of the health of the plaintiff, and the result thereof was to be reported to the defendant, as it was thought or believed that such information would prove beneficial to the defendant in determining the cause, or causes, of the ailment of the eye of the plaintiff which defendant had undertaken or agreed with the plaintiff not only to diagnose, but to treat and care for him while so doing.

Dr Bryans made several examinations of the plaintiff, but in each instance failed to find any serious physical defects other than blood pressure a few points high for a person of plaintiff's age, and so reported his findings to the defendant. It was the custom of the plaintiff to visit defendant's office about three times each week for observation and treatment. The plaintiff usually drove his car from where he made his home to the defendant's office, and, while the left eye was being treated, the right eye was in such condition that it enabled him to drive his car through the congested traffic on the streets of the City of Pensacola.

On May 22nd or 23rd, plaintiff went to the defendant's office in a car driven by another person. The defendant gave plaintiff's eye the usual treatment, and he was then requested to examine the right eye of plaintiff, which was done; and defendant at the same time administered some treatment to the right eye, and from then on it never cleared, and excruciating pain and agony was felt by the plaintiff. Plaintiff lost his sight sometime in June and continued to be treated by the defendant until October, his pain and agony became so intense that it was impossible, because of his physical condition, to continue his visits to the office of the defendant. The plaintiff testified he tried to get the defendant to visit him during the months of October and November, 1934, at his home, but he refused so to do. Mrs. Zur Linden corroborated plaintiff's statement on this point, but the defendant denied he had been requested so to do by the plaintiff. Mrs. Linden testified that she telephoned the defendant to come out to her house and treat his patient, but this fact was denied by the defendant. Dr. Bryans visited the plaintiff some two or three times and found him nauseated and weak, and also found him suffering with severe pains in his head and this condition was reported to the defendant. Plaintiff was organically sound and Dr. Bryans' report to the defendant sustained this conclusion. The responsibility of diagnosing the ailments and treating the eyes of the plaintiff was on the defendant.

Defendant diagnosed plaintiff's ailment as plastic iritis and treated the ailment with atropine, the recognized standard remedy or treatment for same. When atropine is used the patient should be seen by the physician so he can check or test the patient's 'tension' or pressure. If a patient appears to be hypersensitive to atropine, or any other drug, due care requires that a close check be kept and the drug changed so as not to cause the patient pain or agony.

Dr. M. E. Quina testified, viz.: 'When I prescribe atropine, that is, applied in the office, and give a man 2% prescription, in order to check his eyes to see if tension or pressure is developed, I insist that my patient come to see me, or I go to see them, or that they get another doctor, that is, if they are over forty years. * * * When a man over fifty, where I have given him a treatment in the office of atropine and prescribed 2% atropine, I give him the prescription to use himself, I insist that I see him within forty-eight to seventy-two hours. If I prescribe atropine and did not see the man for ten days, I would tell him to get another doctor. Yes, indeed, I would first inquire. If they don't show up, I think they are doing all right. If they are using atropine, I would say, 'Come back'.'

Mr. McLane testified that he examined plaintiff on December 1, 1934, at his home on East Pensacola Heights. He was then suffering with glaucoma, which is the hardening of the eyeball. An eye having glaucoma is first observed to be red and later it will look white. The eyeball may or may not change its shape, but the tendency is to push the eyeball outward. Plastic iritis is an involvement of what we call the color part of the eye with adhesions. If glaucoma is found in its early stages, there is a remedy for it either by drugs or surgery. If atropine is used, diligence is required in observing the patient when it is being administered. The physician should see and observe his patient every forty-eight to seventy-two hours when atropine medication is applied by the patient. The following question was propounded by counsel for plaintiff but an objection thereto was sustained by the trial Court: 'Q. Doctor, from his condition of the glaucoma and with a hypothesis that in July and September a layman observed the conical shape and pressure of his eye, how long would you say that glaucoma had existed at the time you saw him?'

The patient was being treated with atropine and was in such physical condition that he could not go to the office of his physician for treatment, but would talk to him over the telephone. The following question was propounded by counsel for plaintiff and an objection thereto sustained by the trial Court, viz.: 'Q. Under the custom among the doctors in Pensacola, eye specialists, would or would not the failure to go to a person for two months period, when called, be a violation of the duties of a doctor?' The evidence shows that it was possible for a patient suffering with the disease of plastic iritis to have the disease or ailment develop into glaucoma, a hardening of the eyeball, resulting in the loss of vision.

The negligent diagnosis and unskillful treatment and failure to professionally attend the plaintiff are set forth in the declaration, viz.:

Fourth Count. 'That defendant then and there entered upon such employment and then and there diagnosed the ailment of the plaintiff's eyes as glaucoma, and then and there negligently and carelessly, through lack of care, prescribed a certain remedy in the treatment thereof that was not the right or proper treatment for the alleviation of suffering caused by such ailment or the cure thereof, but one that would increase the pressure and suffering, and not one that would relieve or alleviate the condition of said organ, but one that would aggravate and accelerate the ailment, all of which was negligently and carelessly done and performed, whereby and by said carelessness and negligence, the plaintiff was caused to suffer untold and unnecessary physical and mental pain and anguish, and his eyes injured instead of improved, and was caused to become totally and permanently blind therein, and to lay out large sums in treatment and medical attention in an attempt to alleviate the great suffering brought on by defendant's said action, and to be permanently disabled. * * *'

Fifth Count. '* * * and instead of alleviating plaintiff's suffering and deferring the diminishing of loss of sight, caused him excruciating physical and mental pain and suffering and caused him to go blind, totally and permanently, more rapidly than he, with proper treatment, would have been blinded.'

Sixth Count. '* * * that defendant then and there entered upon such employment and then and there diagnosed the ailment of plaintiff's eyes as plastic iritis, and then and there began treating plaintiff therefor, such treatment and the drug or medicine used and prescribed therefor being such as would increase the pressure in plaintiff's eyes; that defendant treated the plaintiff in such an unskillful, careless and negligent manner that by reason thereof the plaintiff was caused to suffer untold and unnecessary physical and mental pain and anguish and his eyes injured instead of improved, and was caused to become totally and permanently blind therein. * * *'

Seventh Court. '* * * that defendant then and there entered upon such employment and then and there diagnosed the ailment of plaintiff's eyes as plastic iritis, and then and there began treating plaintiff therefor, such treatment and the drug or medicine used and...