Spears & Purifoy v. McKinnon

• Decision Date: 23 March 1925
• Docket Number: 261
• Citation: 270 S.W. 524,168 Ark. 357
• Parties: SPEARS & PURIFOY v. MCKINNON
• Court: Arkansas Supreme Court

270 S.W. 524

168 Ark. 357

SPEARS & PURIFOY v. MCKINNON

No. 261

Supreme Court of Arkansas

March 23, 1925

Appeal from Union Circuit Court; L. S. Britt, Judge; judgment modified.

Judgment modified, and, affirmed.

J A. Sherrill, for appellant.

W A. Spear, for appellee.

OPINION

HUMPHREYS, J.

This suit was brought by appellee against appellants, practicing physicians, in the circuit court of Union County, to recover damages in the sum of $ 10,000 for alleged malpractice in the performance of an operation oh her on March 5, 1921. The gist of the complaint is that, after the operation they performed upon her for octopic pregnancy, at Warren-Brown Hospital in El Dorado, they left a sponge or gauze in her abdominal cavity, which dropped into the cul-de-sac, a pouch at the bottom of the abdomen lying above the uterus and in front of the colon, where the gauze began to rot the tissue and membranes between the anterior wall of the rectum and posterior wall of the vagina until it found its way to a point about five inches above the anus, where it sloughed into and out through the rectum, December 3, 1922, having caused her much pain, suffering and injury in its process of elimination.

Appellants filed an answer denying all the material allegations in the complaint.

Thereafter the cause was submitted upon the pleadings, testimony adduced by the parties and the instructions of the court, which resulted in the following verdict: "We, the jury, find for the plaintiff the sum of $ 3,500 against Dr. Spears and the sum of $ 3,500 against Dr. Purifoy."

The court subsequently entered upon the records the following judgment: "It is therefore ordered and adjudged by the court that the plaintiff do have and recover of and from the defendants, B. N. Spears and L. L. Purifoy, the sum of $ 7,000; one-half, or $ 3,500, to be recovered from B. N. Spears, and one-half, or $ 3,500, to be recovered from L. L. Purifoy; together with all her costs herein laid out and expended, for which execution may issue."

An appeal has been duly prosecuted to this court from the verdict and judgment.

The three main contentions urged by appellants for a reversal of the judgment are: first, that the evidence does not warrant a verdict against either of the defendants; second, that Dr. L. L. Purifoy was an assistant surgeon in the operation, subject to the direction of Dr. B. N. Spears, the operating physician, and was not instructed by him to search the abdominal cavity for sponges; and third, that the wording of the verdict did not warrant the court in entering a judgment of $ 7,000 to be paid, one-half by each of the appellants, but should have been a judgment in the total sum of $ 3,500 against appellants jointly.

(1). The testimony, when given its strongest probative force in favor of the appellee, discloses the following facts: Appellee was operated upon March 5, 1921, at Warren-Brown Hospital in El Dorado, Arkansas, where she remained eleven days. She was then removed to her home, and remained in bed about fifty days, under the care of Dr. Spears, during which time she cramped almost to death with pain in the lower part of the stomach. She suffered at intervals from that time until June 2, 1922, at which time she was again seized with severe pains in the lower part of her abdomen, for which she was treated by Dr. Morgan. She improved to some extent under his treatment and became able to do some housework and some work in the postoffice, as assistant, until October, 1922. At that time she again began to have cramping pains as usual. She called on Dr. Irby, and for ten days suffered as much as any one could and live with pains in the lower stomach. She recovered to some extent, and several days thereafter was seized with another spell. She remained in bed until December 22, 1922, when almost a quart of pus passed from her rectum, and on the next day two pieces of gauze passed in the same way. The first piece was about one and one-half inches long, and this passed before Dr. Irby arrived. Dr. Irby removed the other piece partly from the rectum and partly from a fistula in the wall of the rectum which opened into the abdominal cavity. The second piece of gauze was eighteen inches long and three or four inches wide. Another piece of gauze passed on December 29 in a little long roll. After the gauze passed there was no more pain or cramping, but appellee had not recovered at the time of the trial, still being unable to do housework.

The sufficiency of the evidence to sustain the verdict is challenged upon several grounds. It is said that the gauze eliminated through the rectum was different in grade and size of mesh from that used in the operation. The trial took place two and one-half years after the operation, and none of the witnesses remembered to have made a personal examination of the grade or size of the mesh used in the operation. It is true...