Shepherd v. McGinnis

• Decision Date: 17 November 1964
• Docket Number: No. 51507,51507
• Citation: 131 N.W.2d 475,257 Iowa 35
• Parties: Virginia SHEPHERD and Byrle E. Shepherd, Husband and Wife, Appellees, v. George C. McGINNIS, M.D., and the Sisters of the Third Order of St. Francis, a Corporation, Appellants.
• Court: Iowa Supreme Court

Page 475

131 N.W.2d 475

257 Iowa 35

Virginia SHEPHERD and Byrle E. Shepherd, Husband and Wife, Appellees, v. George C. McGINNIS, M.D., and the Sisters of the Third Order of St. Francis, a Corporation, Appellants.

No. 51507.

Supreme Court of Iowa.

Nov. 17, 1964.

Johnson & Phelan, Fort Madison, for appellants.

McManus & McManus, Keokuk, for appellees.

GARFIELD, Chief Justice.

This is a law action by Virginia Shepherd, whom we call plaintiff, and her husband, Byrle, in two counts against Dr. George C. McGinnis and The Sisters of the Third Order of St. Francis, a corporation, which operates a hospital in Fort Madison, for malpractice in using alleged contaminated sutures in performing surgery upon Virginia. Byrle's claim is for loss of consortium. From judgment for $20,000 on jury verdict for plaintiff, defendants appeal. The husband cross-appeals from judgment on jury verdict for defendants, on his claim.

Early in 1960 plaintiff, then about 43, consulted defendant doctor and his partner, Dr. Schrier, for pain in her lower right side. The trouble was diagnosed as an ovarian cyst which Dr. McGinnis removed in defendant hospital March 12, 1960. The cyst was about the size of a baseball. Infection in the operative wound followed, which plaintiff claims was caused by the doctor's use of contaminated sutures furnished by the hospital. Plaintiff alleges both defendants knew or should have known of this contamination. Proof of the alleged negligence of each defendant consists mainly of claimed admissions by Dr. McGinnis and his partner in the former's presence.

Defendants assign 13 errors. Some are duplications. In oral argument defendants conceded three of the alleged errors were not in themselves reversible but suggested their cumulative effect furnished added support for a reversal. We will discuss most of the assigned errors but not in the order followed in the briefs. It seems best to consider first whether a jury question was presented as to the liability of each defendant. This calls for some further reference to the evidence. Of course it must be viewed in the light most favorable to plaintiff.

I. Plaintiff was admitted to the hospital three days before the operation on March 12. She was discharged March 21 but reentered March 24 and stayed until the 28th. Before and after the 21st the incision kept coming open and was infected. After the 28th Dr. McGinnis dressed the wound frequently in his office, plaintiff says on the average of every day until mid-April. Plaintiff testifies she returned to the hospital for four days at that time but we find no evidence of such a visit in the hospital record. On May 26, 1960, plaintiff went to Dr. McGinnis with a bleeding hemorrhoid. There is no showing the hemorrhoid was caused by infection from the operation of March 12.

On September 6, 1960, plaintiff re-entered defendant hospital for five days. Dr. McGinnis diagnosed her trouble then as caused by a cerebral hemorrhage. She was readmitted to the hospital for two weeks on September 23 with symptoms of such a hemorrhage--severe headaches and numbness of the left hand and arm. There is no evidence the hemorrhage was caused by the operation. Plaintiff insists there was some drainage from the operative wound until she was operated on by Dr. Rowley in a Burlington hospital on February 14, 1961, for removal of a diseased gall bladder. Plaintiff admits, however, the condition cleared up some in October, 1960. Plaintiff's husband testifies he was unable to have marital relations with her for eight months, commencing about two weeks before the March 12 operation, 'maybe longer'; her bad months were June and July.

Dr. McGinnis ceased treating plaintiff in October, 1960, after a letter to him from plaintiff's attorneys threatened him with suit and the Shepherds refused to release him from liability. Plaintiff then consulted Dr. Rowley in Burlington. As a witness for plaintiff Dr. Rowley says she told him her operative wound continued to drain until August. He also testifies he felt she was approaching 'menopausal syndromelike and quite a bit of her symptoms were on that basis.' Dr. Rowley says too that plaintiff's gall bladder disease could have no connection with the scar from the operation on March 12 or any rupture of that scar.

As previously indicated, plaintiff relies largely on evidence of admissions of defendant doctor to support her claim that the sutures used on March 12 were contaminated, both defendants knew or should have known this condition, and the contaminated sutures were the proximate cause of plaintiff's injury and damage. Plaintiff testifies that before she left the hospital on March 21 Dr. McGinnis stated she had an infection and said 'the d-n sutures again'; in about April, 1960, Dr. Schrier said in the presence of herself, Dr. McGinnis, and their nurse, Miss Parre, 'Those d--n sutures have caused us so much pain and suffering. Someone ought to sue the s.o.bs,' referring to the manufacturer of the sutures; Dr. McGinnis did not deny this; he said it was the way the sutures were packaged and kept which caused the trouble; several times between March 12 and October 17, 1960, Dr. McGinnis told her the sutures used in her operation caused the infection which followed and that was the only excuse he gave for the infection.

Pauline Parre, a nurse in the office of Drs. McGinnis and Schrier, underwent surgery in defendant hospital December 4, 1959, by a Dr. DeLashmutt, with Dr. Schrier's assistance, for removal of an infected stump of her appendix (left from a previous appendectomy) and a piece of infected bowel. (Dr. McGinnis was out of town at the time of this operation.) The same brand of sutures was used in operating upon Miss Parre. Defendant hospital used no other brand during this period. After Miss Parre's operation the incision came open, the sutures came out and the wound drained.

Miss Parre testifies Dr. McGinnis told her in April, 1960, the catgut caused the trouble just referred to, that he thought it was old, it was rotten catgut, a bad batch; he treated her for this condition until July, 1960; also in about April Drs. McGinnis and Schrier told plaintiff the cause of her condition was bad catgut and on many occasions that she should sue the manufacturer.

As a witness for defendants Dr. McGinnis admits he may have referred to the sutures used on plaintiff and Miss Parre as 'those d--n sutures.' He denies, however, he told either of them they caused her post-operative infection and says plaintiff's infection came from the fluid in the cyst being removed and from the susceptibility to infection of the scar tissue in plaintiff's abdominal wall from previous surgical operations. In a deposition taken before trial Dr. McGinnis said he did not know what caused plaintiff's infection. Other surgeons confirmed Dr. McGinnis' testimony at the trial as to the cause of the infection.

Before March, 1960, plaintiff had been in and out of a hospital and undergone surgical operations several times, including an appendectomy in 1929, an oophorectomy in 1943, hemorroidectomy in 1949, hystorectomy in 1950, and removal of abdominal adhesions in 1957. She was also admitted to defendant hospital several other times before March, 1960, with partial bowel obstruction. She had had spinal meningitis, scarlet fever, pneumonia, and peritonitis following childbirth.

There is medical evidence for defendants that these previous operations caused latent bacterial infection which would probably be activated by other surgery in the area and produced scar tissue which is more susceptible to infection.

Plaintiff offered no expert evidence such as appears in most cases of this kind. A surgeon called by plaintiff testifies on cross-examination, in substance, that if contaminated sutures were placed in a wound it was quite obvious the wound would be contaminated. Another such surgeon says, in effect, that contaminated sutures could cause such infection.

II. We think there is sufficient evidence to warrant submission of the case to the jury as against defendant doctor. The jury could find from his admissions and those of his partner, in his presence and with his apparent approval, that the sutures were contaminated, defendant doctor knew this, they were the cause of plaintiff's infection and damage resulted therefrom.

It is elementary that admissions and declarations of a party to the action, against his interest, are competent evidence against him. Tuthill v. Alden, 239 Iowa 181, 186-187, 30 N.W.2d 726, 728, and citations; Book v. Datema, Iowa, 131 N.W.2d 470 (filed November 17, 1964), and citations; 31A C.J.S. Evidence § 272a, page 697.

White v. Walstrom, 254 Iowa 646, 650, 118 N.W.2d 578, 581, says a plaintiff may 'always prove his case by statements of defendant made out of court * * *.' And McGulpin v. Bessmer, 241 Iowa 1119, 1126, 43 N.W.2d 121, 125, a malpractice case, states: 'Admissions of a physician, when not mere statements of regret or sympathy, are sufficient in themselves to take a case of this kind to the jury.' (citation). The case is cited with apparent approval in Stickleman v. Synhorst, 243 Iowa 872, 877, 52 N.W.2d 504, 507.

Insofar as part of defendant doctor's admissions were in the form of opinions, they were on a subject on which he was competent to speak as an expert witness and were not inadmissible as opinions. 31A C.J.S. Evidence § 272b, pages 700-701. We need not decide whether admissions that are opinions of a party are generally admissible.

III. We think too there is sufficient evidence defendant hospital knew, or should have known, the sutures it furnished Dr. McGinnis for the March 12 operation on plaintiff were contaminated.

As defendants suggest, so far as shown Drs. McGinnis and Schrier were not officers or employees of the hospital for whose negligence it would be liable under the doctrine of respondeat superior. Plaintiff selected them. Their status was more nearly that of...