Skeels v. Davidson

• Decision Date: 01 July 1943
• Docket Number: 28790.
• Citation: Skeels v. Davidson, 139 P.2d 301, 18 Wn2d 358 (Wash. 1943)
• Parties: SKEELS v. DAVIDSON et ux.
• Court: Washington Supreme Court

139 P.2d 301

18 Wn.2d 358

SKEELS v. DAVIDSON et ux.

No. 28790.

Supreme Court of Washington

July 1, 1943

Department 1.

Action by J. E. Skeels against C. F. Davidson and wife for death of a minor. Judgment for plaintiff, and defendants appeal.

Judgment modified and, as modified, affirmed.

Appeal from Superior Court, King County; Donald A McDonald, judge.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for appellants.

Frank Harrington, of Seattle, for respondent.

ROBINSON Justice.

On October 3, 1941, the appellant removed the tonsils of John Earl Skeels, then about six and one-half years of age. The operation was performed at the doctor's office at ten o'clock a.m. The appellant permitted the boy to be taken home at three p.m. He died between one and two o'clock the following morning. This action was brought by his father and is based upon Rem.Rev.Stat. § 184.

In this opinion, C. F. Davidson will be referred to as though he were the sole defendant and appellant.

The allegations of negligence were, in substance, as follows: That the defendant did not use care and skill in performing the operation; that he carelessly and negligently permitted the child to return to his home in a weakened condition when he should have remained at the office of the defendant or have been sent to a hospital; that, subsequent to the operation, the child bled profusely, and defendant failed, neglected, and refused to use ordinary care to stop the bleeding; and that defendant failed and neglected either personally to attend the child or, in the alternative, to advise his parents that a nurse should be in attendance.

Plaintiff's counsel opened the case by calling the defendant as a witness. When asked the cause of death, the defendant replied that the child's parents refused to permit an autopsy, and that he could not give a definite answer. When pressed for his opinion, he replied that the child was weak, malnourished, and lacked ability to coordinate; had taken a good deal of water, and, 'on account of its weakness and its lack of coordination, I think that the child drowned in its own vomitus.' The death certificate, a black form filled out and signed by the defendant, was then produced and submitted in evidence. It reads, in part, as follows: 'Immediate cause of death; Death came with a convulsive seizure 12 hours after tonsillectomy. Due to: Cause not demonstrated. Due to: Child was once treated as thymus case.'

When attention was called to the last comment, the defendant at once stated that it was a mistake, and explained that, at the time he filled out the report, he knew that the child had been treated by Dr. Seelye as a 'thyroid' case; and that he inadvertently used the word 'thymus' instead of 'thyroid.' It was strongly suggested, during the examination, that the defendant, realizing that he had been careless in his treatment of the child, designedly made a false and misleading entry in a deliberate effort to cover up and conceal his negligence. Opportunities for referring to this matter were repeatedly created throughout the comparatively long trial, and, although Dr. Seelye was called to prove that he had, in fact, treated the child as a thyroid case, and it was further shown that the so-called 'thymic' deaths of children occur while under the anaesthetic and not hours after the operation, it is probable that this early and persistent line of attack was exceedingly damaging to the defense.

Although much of the trial was devoted to an attempt to prove that the operation was unskilfully performed, no substantial evidence to that effect was elicited. The conflict is over the post-operative treatment. The boy's mother testified that he did not seem to bleed very much for the first two hours after the operation, but that the bleeding then increased and continued until three o'clock when the boy was taken home. At that time, according to her testimony, blood was running from his mouth, and, when a tongue depressor was used by the defendant to inspect his throat, it came out covered with blood. She further testified that his teeth were chattering. Blood continued to come freely from the boy's mouth after he was taken home. She became alarmed and called the defendant at about eight-thirty.

'A. The reason I called the doctor was because he had turned ice cold, his whole body, and he had broken out in a cold, clammy sweat. He acted like he was half unconscious. He would act kind of out of his head and like he didn't recognize me all of the time. So I became quite worried about him and called the doctor.'

She further testified that the doctor came; that she told him that the boy had been bleeding quite a bit; that he told her there was nothing to worry about; and that he was perfectly all right. He said that he would call again. He did so, about ten-thirty. He asked if the boy had vomited: 'A. I told him yes, he had vomited quite a quantity of blood. He said, 'How much?' And I said, 'Enough to soak a bath towel under his head.' He said 'He can bleed a lot more than that, a whole panfull, a pint or two pints, but there is nothing wrong.' * * *

'Q. Was there anything said with reference to nay treatment or medicines? A. No. I said, 'I wish his hands weren't so cold,' and he said, 'Well, you would be cold, too, if you had swallowed as much blood as he has swallowed.''

She testified that the child had vomited about two pints of clotted blood, and that, after the doctor left, he continued getting weaker and weaker. The father, working on night shift, came home about one o'clock. The boy's pulse was getting weaker, and his lips were turning blue. She asked him to call the defendant.

The father testified that the boy was bleeding considerably when he was taken from the doctor's office, and that, when he came home from his work, he seemed pretty far gone. He called the doctor and told him his boy was dying. The doctor told him to take him to Columbus hospital at once. When they arrived at the hospital, a nurse and interne attempted to revive the boy, but without success. Nor was the defendant able to do so when he arrived shortly thereafter.

Mrs. Orban, a neighbor, was at the house when the boy was brought home, returned there Before the defendant's first evening visit, and remained for some hours. Her testimony as to the boy's condition, the quantities of blood, and as to what the doctor said and did, agrees perfectly--in fact, rather too perfectly--with that of Mrs. Skeels.

Dr. Davidson denied that the child was bleeding when he was taken from the office, and his office nurse testified to the same effect. He stated that, on his first visit to the Skeels home, the child was cold and clammy, as a child is when nauseated and vomiting, but, when he returned on his second visit, his color had changed to pink, and his skin was warm and moist. He denied that anything was said to him about an unusual amount of blood, or that he saw any unusual amount at any time. In the course of his examination, he detailed the very extensive preoperative tests. These ranged through syphilis, glucose tolerance, urinalysis, blood count, coagulaion, and metabolism. He, of course testified that he used no styptics or coagulative agents after the operation since he at all times maintained that no unusual or abnormal bleeding occurred.

The boy was quite subnormal, both physically and mentally. His speech was so retarded that, although he was past six years of age, it was very difficult for strangers to understand him. Dr. Stevenson Smith, of the department of psychology of the University of Washington for the past thirty years, and whose competence in his field is universally recognized, testified that he gave him the Stanford-Binet test and personally observed him for a period of two hours when he was at the age of four years and seven months. The test fixed his mental age at two years and two months. Although his speech was a little better than that of a normal child of that age, he showed unusual lack of coordination, and he represented at that time 'a feeble-minded level.' He tested him again at the age of five years and seven months, approximately one year Before the boy's death. At that time, he showed, under the Stanford-Binet test, a mental age of two years and ten months. This test indicated no relative improvement, but again displayed a 'typical picture of feeble-mindedness.' He was also tested by the Merrill-Palmer scale, in which test he also showed a mental age of two years and ten months. He was also given the socalled 'good enough' tests in which the child is requested to draw certain simple pictures. In these tests, he showed the capacity of a child of but eighteen months. Dr. Smith's conclusion was that the boy presented, not a mere case of retarded development, but one of permanent mental deficiency, but repeatedly stated that his conclusion should not be regarded as infallible, saying, among other things: 'I do want to stress that a diagnosis along these lines cannot be made with absolute certainly.'

The boy had attneded the speech clinic at the University of Washington for three or four days a week for a period of six or seven months, ending in August Before his death. An instructor testified that, while there, it was difficult to keep his attention, and his retention was very poor. He showed but little progress, and, on the advice of the elinic he was taken to defendant Davidson who, after a long experience in surgery, had, in 1925, spent five months in the East and nine months in Europe studying problems of nutrition, growth, and development. According to his mother, when he was taken to Dr. Davidson, he was in good general health, although somewhat underweight. He had had a serious cane of tonsilitis the...