Semerjian v. Stetson

• Decision Date: 01 December 1933
• Citation: 284 Mass. 510,187 N.E. 829
• Parties: SEMERJIAN v. STETSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 510

187 N.E. 829

SEMERJIAN

v.STETSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 1, 1933.

Exceptions from Superior Court, Suffolk County; Sisk, Judge.

Action of tort by Moses Semerjian against Oscar F. Stetson, administrator. At the trial in the Superior Court the judge ordered a verdict for the defendant, and plaintiff brings exceptions.

Exceptions overruled.

L. Powers, of Boston, for defendant.

O. Storer and J. J. Lucas, both of Boston, for plaintiff.

DONAHUE, Justice.

This is an action for alleged negligence, originally brought against a physician and after his death defended by his administrator. The case is here on the plaintiff's exception to the direction of a verdict for the defendant by a judge of the Superior Court, when the defendant rested at the close of the plaintiff's evidence.

The doctor, on April 23, 1928, operated on the plaintiff and removed a hard growth, termed a chalazion, from the under side of the upper eyelid of the plaintiff's right eye. Prior to that time six similar growths had been removed from the plaintiff's eyelids by operations by other doctors, three of them being on the right eye and one from the upper lid of that eye. As to what was done by the doctor at the time of the operation the only testimony was that of the plaintiff which is here briefly summarized. The doctor rolled back the eyelid, held it with a clip, applied a local anaesthetic, cut out the growth and curetted. The operation up to this point caused some but not much pain. The doctor then put in the eye some drops of a liquid taken from a bottle. This at once caused a burning sensation and severe pains. The doctor started trembling, then ‘wipe[d] out’ the eye, put in some other substance and gave the plaintiff something to take with him and use in the eye. On the four following days the doctor treated the plaintiff. The eye was inflamed, the paid persisted and the plaintiff went to a hospital. The entrance diagnosis was there made that the plaintiff was suffering from ‘Traumatic keratitis' which the record defines as ‘inflammation of the cornea of the eye due to a wound or injury.’ Upon examination a ‘Large ulcerative area, involving almost entire cornea’ and ‘inside inflammation’ was found and the diagnosis made of ‘Ulcerative keratitis.’ The plaintiff testified that the sight of his right eye is practically lost. It is not contended by the plaintiff that there was any negligent act of the doctor in the operation except putting in the eye the drops of liquid which was followed by a burning sensation and pain.

The burden was on the plaintiff to establish a causal connection between negligence of the doctor and his injury; that is to prove that an act or omission of the doctor caused the injury and also that such act or omission was negligent. Negligence of a doctor consists of his failure to conform to the standard of care which the law sets for members of his profession, that is the obligation to have and to use the skill and care which members of his profession commonly possess and exercise under corresponding circumstances. Chesley v. Durant, 243 Mass. 180, 182, 137 N. E. 301.Harriott v. Plimpton, 166 Mass. 585, 44 N. E. 992. The plaintiff was not here aided in sustaining the burden of proving negligence of the doctor by any testimony as to the care and skill generally possessed and commonly used by doctors undertaking such an operation or as to the methods or materials generally employed by such doctors in performing similar operations. There is nothing in the record on which to base a finding that the defendant's intestate did not possess adequate skill to undertake and perform the operation or that the removal of the growth was not performed with the requisite skill and care.

Certain statements of the doctor, appearing in the plaintiff's testimony, in our opinion do not warrant the finding by the jury that they were admissions of negligence. Goode v. Lothrop, 266 Mass. 518, 165 N. E. 688. Just before the beginning of the operation after some discussion of the fact that he had no assistant present, the doctor said that he could perform it alone. There is nothing in the evidence to indicate that in such an operation the presence of an assistant is necessary or that the absence of an assistant played any part in what...