Spain v. Burch
| Decision Date | 03 March 1913 |
| Citation | 154 S.W. 172,169 Mo.App. 94 |
| Parties | JOHN L. SPAIN, Respondent, v. EDWARD J. BURCH, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number Two.--Hon David E. Blair, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
McReynolds & Halliburton for appellant.
(1) In an action for malpractice plaintiff must recover, if at all in accordance with his allegations. The evidence must be restricted within the issues made by the pleadings. 30 Cyc 1583, par. 7 and note 4; West v. Martin, 31 Mo. 375. (2) A physician and surgeon is only required to possess and use the skill and care which is possessed and exercised generally by physcians of ordinary care and skill in similar communities. Hales v. Raines, 146 Mo.App. 241; West v. Martin, 31 Mo. 375; Robertson v Wenger, 131 Mo.App. 224; Ghere v. Ley, 128 Mo.App. 362; Whitsell v. Hill, 37 L. R. A. ___. (3) In an action against a physician for malpractice, no presumption of negligence or want of skill can arise from the fact that defendant failed to effect a cure. The burden of proof in such case is on the plaintiff to show physician's want of reasonable skill, care and diligence in his treatment of the case, and also that the injury complained of resulted from a failure to exercise these requisites. 30 Cyc. 1584, and notes 48, 49 and 50; also cases cited under points 2 and 3; Sims v. Parker, 41 Ill.App. 284; Pettigrew v. Lewis, 46 Kan. 78, 26 P. 458. (4) The fact that Mary Francis Spain died on the operating table, after having been given an anaesthetic, is not evidence of any negligence on the part of defendant or Dr. Webster. A physician is not a warrantor or insurer of a case and is not to be tried by the result of his remedies; nor can negligence be implied from failure to effect a cure. Logan v. Field, 75 Mo. 601; 30 Cyc. 1573, par. 7 and notes 35 and 36; Buncey v. Pinkham, 29 Neb. 350, 45 N.W. 694; Craig v. Chambers, 17 Ohio St. 253. (5) A physician and surgeon, in putting a patient under the influence of an anaesthetic is only bound to look to natural and probable effects, and is not liable for results arising from the peculiar condition or temperament of a patient of which they had no knowledge. Bogle v. Winslow, 5 Phila. (Pa.) 136; Baker v. Welsh, 144 Mich. 632, 108 N.W. 94, 7 L. R. A. (N. S.) 612. (6) The burden of proof is primarily upon a plaintiff to prove the negligence charged. It is not enough to show an accident and an injury. A casual connection must be established between the accident and the negligence charged, in order to make out a case for the jury. Warner v. Railroad, 178 Mo. 133; Wilkerson v. Railroad, 140 Mo.App. 306, 124 S.W. 543; Jackson v. Mining Company, 151 Mo.App. 644; Trigg v. Land and Lumber Co., 187 Mo. 227; McGrath v. Transit Co., 196 Mo. 97; Smart v. Kansas City, 91 Mo.App. 586; 9 Ency. of Ev., 833, par. 2, n. 40.
H. T. Harrison and R. A. Mooneyham for respondent.
(1) The general rule of law is that a physician or surgeon or one who holds himself out as such, when he accepts an employment to treat a patient professionally, must exercise such reasonable care and skill as is usually possessed and exercised by physicians or surgeons in good standing of the same system or school of practice in the vicinity of his practice, having due regard to the advanced state of the medical and surgical science at the time. This rule is elementary and defendant's learned counsel admits it to be the rule, therefore the citation of authorities is unnecessary. Robertson v. Wenger, 136 Mo.App. 224; Hales v. Rains, 146 Mo.App. 241. (2) It is true, however, that certain principles of medicine are so well known and universally received that to ignore them would be negligence in law, no matter what the practice might be in the particular school to which the physician might belong. Barrows on Negligence, pp. 377, 378; Nelson v. Harrington, 40 N.W. 228; Longan v. Weltmer, 180 Mo. 322. (3) The liability of a surgeon for error of judgment depends not merely on the fact of his ordinary skill but on whether in treating the case he used such reasonable skill and diligence as was ordinarily exercised in his profession. West v. Martin, 31 Mo. 375. (4) If expert practitioners of the defendant's school concurred in opinion about the right method of treating hernia (in this case about testing the heart and lungs, before administering the anaesthetic) then according to the courts which have passed on the question of his conduct should be regarded as an experiment which renders him liable, if he injured plaintiff in the way alleged. McClaren v. Grenzfelder, 147 Mo.App. 478; Carpenter v. Blake, 60 Barb. 488; Patton v. Wiggin, 51 Me. 594; Jackson v. Bernham, 20 Colo. 532; Pike v. Housinger, 155 N.Y. 201; Allen v. Voje, 114 Wis. 1; Whitsell v. Hill, 37 L. R. A. (Iowa) 830, note 6. (5) A demurrer to the evidence admits as true every fact which the testimony in behalf of plaintiff tends to prove and every inference which may be reasonably drawn therefrom. Pauck v. Provision Co., 159 Mo. 467; Hach v. Railroad, 208 Mo. 581; Kinlen v. Railroad, 216 Mo. 145; Pitthan v. Scaithan, 127 Mo.App. 29; Miely v. Railroad, 215 Mo. 567. (6) While ordinarily in passing on a demurrer to the evidence the plaintiff's evidence alone should be considered, yet if defendant's evidence aids plaintiff's case, it also is to be taken into account. Jordan v. Transit Co., 202 Mo. 418. (7) The rule is well settled that "Where an issue of fact is controverted and oral testimony must be relied on to show the fact, the jury has the right to find against the testimony although it is uncontradicted. Bank v. Hammon, 124 Mo.App. 177; Hunter v. Wethington, 205 Mo. 284. (8) The court on appeal will not pass on the weight of the testimony, where the successful party's case is supported by substantial evidence. Hale v. Raines, 146 Mo.App. 232; McCarty v. Transit Co., 192 Mo. 401. (9) A party cannot try a case on one theory in the trial court and then change around and argue it on another theory in the appellate court. LaFayette Bldg. Co. v. Kleinhoffer, 40 Mo.App. 338; Walker, v. Owens, 79 Mo. 563; Whetstone v. Stone, 70 Mo. 570; Dunnigan v. Green, 165 Mo. 98; Horgan v. Brady, 155 Mo. 659; Bensieck v. Cook, 110 Mo. 182; Hume v. Hale, 146 Mo.App. 676.
--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 anaesthetic. 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, Missouri, 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 anaesthetic;" that plaintiff's wife underwent an operation including an administration of an anaesthetic 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 failed 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 anaesthetic 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 twenty 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, anaesthetic 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 anaesthesia for any considerable length of time. The Teters apparatus, as described by the witnesses, is merely a mechanical device 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 anaesthetic. 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 anaesthesia. The Teters apparatus is one of the comparatively late improvements for this purpose and is used quite extensively...
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