Spain v. Burch

• Decision Date: 03 March 1913
• Citation: 154 S.W. 172,169 Mo. App. 94
• Parties: SPAIN v. BURCH.
• Court: Missouri Court of Appeals

154 S.W. 172

169 Mo. App. 94

SPAIN v. BURCH.

Springfield Court of Appeals. Missouri.

March 3, 1913.

1. PHYSICIANS AND SURGEONS (§ 14) — CARE REQUIRED — USE OF MEDICINES.

It is not enough that a physician possess ordinary skill and use proper and approved medicines and appliances in treating a patient, but he must use such reasonable skill and diligence in applying or administering the medicine and means used.

2. PHYSICIANS AND SURGEONS (§ 18) — ADMINISTERING ANÆSTHETICS — PRELIMINARY EXAMINATION — EVIDENCE.

Evidence, in an action for malpractice of a physician in administering an anæsthetic, laughing gas, held insufficient to go to the jury on the question of failure to make a proper physical examination before administering it.

3. PHYSICIANS AND SURGEONS (§ 15) — NEGLIGENT TREATMENT — EVIDENCE.

Unskillful or negligent treatment, for which a physician is liable, is not shown by evidence that the physician did not treat his patient in the mode, or use those measures, which, in the opinion of others, even medical men, the case required; this tending to prove error of judgment, for which he is not liable, as much as want of reasonable care and skill.

4. PHYSICIANS AND SURGEONS (§ 18) — MALPRACTICE — EVIDENCE.

That death of a patient occurred during the administering to her by a physician of an anæsthetic will not alone support a recovery for

malpractice; plaintiff having the burden of proving negligence.

5. NEGLIGENCE (§ 136) — EVIDENCE — QUESTIONS FOR COURT.

It is for the court, and not the jury, to say whether facts have been proven from which negligence may be reasonably inferred.

6. EVIDENCE (§ 594) — BURDEN OF PROOF — FAILURE TO SUSTAIN.

The rule that the jury has a right to find against oral testimony, though it is uncontradicted, will not allow them to treat their disbelief of defendant's uncontradicted testimony that he did a thing as supplying the lack of affirmative evidence required of plaintiff under his burden of showing defendant's failure to do the act.

7. PHYSICIANS AND SURGEONS (§ 18) — ADMINISTERING ANÆSTHETICS — NEGLIGENCE — EVIDENCE.

On an issue of negligence of a physician in administering an anæsthetic, it being shown dentists use it more often than physicians, and are often more proficient and skilled in its use, evidence of the usual and customary methods of dentists, skilled in that respect, in using it, is admissible.

8. PHYSICIANS AND SURGEONS (§ 18) — MALPRACTICE — PLEADING AND EVIDENCE.

The petition, in an action for malpractice of a physician in administering an anæsthetic, not alleging as a ground of negligence failure to properly diet the patient before administering it, evidence to prove such fact is inadmissible.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by John L. Spain against Edward J. Burch. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McReynolds & Halliburton, of Carthage, for appellant. H. T. Harrison and R. A. Mooneyham, both of Carthage, for respondent.

STURGIS, J.

This is a suit for damages for the death of plaintiff's wife, caused, as is alleged, by the malpractice of the defendant, as a physician, in administering to her an anæsthetic. The plaintiff recovered, and the defendant appealed, alleging as the chief error that the evidence is not sufficient to support the verdict on either ground of negligence on which the case was submitted to the jury. There were originally two defendants; but, as the case was dismissed as to one during the progress of the trial, the other defendant, Dr. Burch, will be treated as the sole defendant.

The petition, after stating that the defendant is a physician and surgeon practicing at Carthage, Mo., alleges that plaintiff's wife, Mary F. Spain, "contracted with the defendant for an operation for hemorrhoids, which said operation necessitated the use and administration of an anæsthetic"; that plaintiff's wife underwent an operation, including an administration of an anæsthetic through the Teters apparatus, to wit, nitrous oxide. The grounds of negligence on which the case went to the jury are that the defendant (1) "negligently, unskillfully, and carelessly administered the said nitrous oxide through the Teters apparatus by failing to use necessary diligence and skill, which in similar cases are required, and by carelessly, negligently, and unskillfully working and operating and controlling and governing the flow of said nitrous oxide and its component oxygen by the Teters apparatus"; and also (2) "by negligently and carelessly, and for want of diligence and skill, failing to make an examination or test of the body or organic functions of the said Mary F. Spain, prior to the operation aforesaid, and for the purpose of ascertaining and learning if the physical condition of the said Mary F. Spain was in a proper state to withstand the necessary strain of the operation and the anæsthetic to be given."

The following facts are clearly shown by the evidence, and are practically conceded by both sides: The defendant was a well-educated physician, having been engaged in the practice of his profession for more than 20 years. It was conceded, and the jury was instructed, that there was no evidence that the defendant did not possess the skill and prudence of an ordinarily careful and skillful member of his profession. The nitrous oxide, spoken of in the petition, is commonly known as "laughing gas," and is one of the safest, if not the safest, anæsthetic known. It is largely and commonly used by physicians and dentists in performing short operations. By the use of this gas alone the patient cannot, at least with safety, be kept in a state of anæsthesia for any considerable length of time. The Teters apparatus, as described by the witnesses, is merely a mechanical devise for mixing oxygen with the nitrous oxide in administering the same to the patient. This is accomplished by having jars of each of the gases, under pressure, connected with a mixing chamber, from whence the mixed gases are administered to the patient by means of a tube and hood fitting over the face. The flow of each gas is regulated by stopcocks, which are manipulated by the person administering the anæsthetic. All the evidence shows that the purpose of mixing the oxygen with the nitrous oxide is to make its use more safe, and to prolong the period of anæthesia. The Teters apparatus is one of the comparatively late improvements for this purpose, and is used quite extensively in hospitals and by physicians everywhere, and its use is becoming more extensive.

It is also conceded that the operation performed was of short duration, not occupying over five to ten minutes. There can be no doubt that the anæsthetic itself was one of the safest and best to be used for this purpose; and that the method of administering it was one of the best approved scientific methods.

We recognize the rule, however, that it is not sufficient that a physician possesses ordinary skill, and that he use proper and approved medicines and appliances in treating the patient, but also that in treating a particular case he must in that case use such reasonable skill and diligence in applying or administering the medicine and means used. West v. Martin, 31 Mo. 375, 80 Am. Dec. 107. The question to be determined is whether the defendant did, in this particular case, use ordinary skill and diligence in administering the anæsthetic to the deceased. It is claimed that he was negligent in not making a proper examination of the physical condition of the patient to ascertain whether or not her physical condition was such as to make it safe and proper to administer the anæsthetic to her. On this point the court, at the instance of plaintiff, instructed the jury that, if they find from the evidence that the defendant carelessly and negligently failed to make a proper examination or test of her body and organic functions, before administering the anæsthetic, to ascertain whether her physical condition was such as to successfully withstand the effects of said anæsthetic, and that such an examination would have disclosed the facts to the defendant that she, at that time, was in such a physical condition that she could not withstand the effects of said anæsthetic, and that defendant was negligent in failing to make such examination under the facts and circumstances shown in evidence, and that the anæsthetic was administered without such an examination, then the jury shall find for the plaintiff.

On a careful reading of the record in this case, we are convinced that there was not sufficient evidence to carry this question to the jury; and that the court erred in submitting the case on this instruction. The evidence shows that the wife of plaintiff came to the office of defendant in the afternoon. The defendant states that he made a partial examination of her ailment, and ascertained that she was not able to withstand the pain necessarily caused by making a...