Saylor v. Brady

• Decision Date: 08 December 1923
• Docket Number: 24,308
• Citation: 220 P. 1047,114 Kan. 764
• Parties: MRS. S.W. SAYLOR, Appellant, v. CHARLES H. BRADY, Appellee
• Court: Kansas Supreme Court

220 P. 1047

114 Kan. 764

MRS. S.W. SAYLOR, Appellant, v. CHARLES H. BRADY, Appellee

No. 24,308

Supreme Court of Kansas

December 8, 1923

Decided July, 1923.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Physician -- Malpractice -- Evidence -- Demurrer. In an action for damages for malpractice where plaintiff offered no competent evidence of negligence on the part of the defendant the court properly sustained a demurrer to the evidence.

C. J Taylor, of Parsons, and William H. Foulke, of Garner, Ark., for the appellant.

T. M. Brady, and E. L. Burton, both of Parsons, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for malpractice. The trial court sustained a demurrer to plaintiff's evidence, and she appealed.

Plaintiff offered no expert evidence to show negligence. It is the general rule in malpractice cases that the negligence in the treatment, which it is claimed caused the injury, must be shown by physicians or by medical witnesses called as experts. Pettigrew v. Lewis, 46 Kan. 78, 26 P. 458; Sly v. Powell, 87 Kan. 142, 123 P. 881; Stout v. Bowers, 97 Kan. 33, 154 P. 259; Paulich v. Nipple, 104 Kan. 801, 180 P. 771; James v. Grigsby, ante, p. 627.

The claim of negligence here made was, that in performing a surgical operation upon plaintiff the defendant made the incision too long and in an improper place; that he used defective catgut in sewing up the wound and failed to use proper means to cause the wound to heal, and that he failed to give proper advice and proper treatment after the operation. Obviously, to entitle plaintiff to recover it was necessary for her to offer testimony, by some witness who knew something of medical science, and that means a physician or surgeon, tending to show what length of incision was proper in the operation performed, where it should be made, what were the proper means to use to cause the wound to heal, or what constituted proper advice or treatment after the operation.

The medical witness called by plaintiff testified he had no judgment as to what was the proper treatment in plaintiff's case and could form no opinion thereon without knowing the circumstances of the case, such as the nature of the operation performed by defendant upon her, the condition of the wound, and the condition of the patient. These were not stated to him in a hypothetical question and his judgment asked thereon, nor was the negligence of the defendant shown in any way by any witness familiar with medical science.

In Pettigrew v. Lewis, supra, it was said:

"Cases may arise where there is such gross negligence and want of skill in performing an operation as to dispense with the testimony of professional witnesses." (p. 81.)

If, in performing a surgical operation, a metallic spring twelve inches long were sewed up in the abdomen (Wharton v. Warner, 75 Wash. 470, 135 P. 235), or a jaw bone broken in pulling a tooth was given no treatment of any kind ( Eichholz v. Poe et al., 217 S.W. 282 [Mo.]), perhaps medical evidence would not be necessary to show negligence, but we have no such situation here.

Appellant argues that after the operation, and especially after plaintiff left the hospital, defendant did not visit plaintiff as frequently as he should have done, and did not give her proper advice and treatment. The same difficulty is found here as before discussed. There...