Stacy v. Williams

Decision Date13 March 1934
Citation253 Ky. 353
PartiesStacy et al. v. Williams.
CourtUnited States State Supreme Court — District of Kentucky

3. Physicians and Surgeons. — Evidence of surgeon's negligence in administering anesthetic, examining broken leg with fluoroscope and placing parts of broken bone in apposition, held inadmissible where petition was based on failure to make diagnosis, "unsuccessful attempt to readjust, reset and co-apt" bone, and unsuccessful incision.

4. Physicians and Surgeons. — Physician after setting broken leg and applying splint need not remain with patient, provided his attention is not needed in intervals between visits.

5. Physicians and Surgeons — Physician or surgeon need only ex-exercise such reasonable care as others learned and skilled in his profession in similar neighborhood, engaged in same general line of practice ordinarily exercise in like cases.

6. Physicians and Surgeons. — Presumption of physician's negligence does not arise from evidence of patient's mental pain or from failure to cure or poor result, or because of appearance of infection.

7. Physicians and Surgeons. — Patient has burden to prove negligence of physician or surgeon and that such negligence proximately caused injury, and doctrine of res ipsa loquitur is inapplicable.

8. Physicians and Surgeons. — Physician is not responsible for injuries resulting from erroneous exercise of judgment, provided he makes proper investigation.

9. Physicians and Surgeons. — Presence of infection following operation is neither prima facie evidence of, nor per se, negligence of surgeon.

10. Physicians and Surgeons. — Right of recovery in malpractice action can be established only by testimony of experts unless evidence shows act or omission by physician within layman's common knowledge.

11. Physicians and Surgeons. — Whether attending physician's negligence was primary cause of patient's condition after treatment must be established by expert testimony.

12. Physicians and Surgeons. — Patient who is in pari delicto with physician will not be allowed recovery in malpractice case.

13. Torts. — All persons participating in moral delinquency or turpitude are deemed in "pari delicto," as regards recovery in tort.

14. Negligence. "Proximate cause" of injury is that cause which in natural and continuous unbroken sequence produces injury or that act or omission which immediately causes injury.

"Concurrent cause," as distinguished from proximate cause, is that cause which acts contemporaneously to produce a given result, and where two distinct causes are operating at the same time to produce a result which might be produced by either there are concurrent causes. An "efficient cause" is described as a primary or reasonable cause of a legal liability, though first in time and most remote; while "contributory cause" is that cause which under the same circumstances would always be an element aiding in the production of a result and is synonymous with "contributory negligence."

15. Physicians and Surgeons. — Evidence held insufficient to make issue for jury of surgeon's negligence in treating broken leg, where overlapping and infection of parts of broken bone might have resulted from patient's nonco-operation.

The evidence disclosed that defendant surgeon first placed broken parts in apposition and used "Thomas Splint and Buck's Extension" in completing the setting of the leg, but that the patient pushed the splint down till weights became useless. Thereupon it became necessary to perform an "open operation" in which great pains were taken to avoid infection. Thereafter patient, in spite of warnings, devoted himself to working the cast away from his hip and leg.

16. Trial. — Case should be withdrawn from jury where evidence is equally consistent with any one of two or more states as to cause of accident.

17. Trial. — Conjecture, surmise, and speculation are insufficient upon which to base jury's verdict.

18. Damages. — Damages must be shown with reasonable certainty both as to their nature and cause.

19. Evidence. — Hypothetical questions propounded to experts must be based upon and relate to facts proved.

20. Evidence. — Hypothetical questions which include facts not in evidence are improper.

21. Evidence. — Hypothetical questions asked physicians in malpractice case, for purpose of showing, without reference to evidence, that witnesses would adopt different procedure in treating patient's leg, held improper and prejudicial.

22. Trial. — Recalling plaintiff's witnesses on rebuttal for reproduction of evidence given by them in chief held improper.

23. Evidence. Plaintiff's exhibition of his leg to jury in malpractice case for improper treatment thereof held proper on question of damages.

24. Appeal and Error; Trial. — Conduct of plaintiff's attorney in malpractice case in having plaintiff sit before jury with his injured leg exposed, throughout counsel's argument in which leg was repeatedly referred to, held improper and prejudicial.

25. Hospitals. — Fact that surgeon sued for malpractice was largely in control and management of hospital did not render hospital liable for his negligence to patient therein.

26. Hospitals. — Evidence held insufficient to make issue for jury of hospital's liability for injuries to patient therein claimed to have resulted from attending physician's malpractice.

Appeal from Bell Circuit Court.

W.L. HAMMOND, N.R. PATTERSON, L.R. CURTIS and LOW & BRYANT for appellants.

F.D. SAMPSON and J.M. ROBSION for appellee.



Dr. Stacy resides at Pineville, Bell county, Ky., and engages in the general practice of medicine and surgery. The Stacy-Chappell Hospital is privately owned, and engages in the business of receiving patients and furnishing them hospitalization. Ira Williams resides at "Four Miles," Bell county, and, at a salary of $144 a month, engages in the work of a fireman of the Kentucky Utilities Company.

On June 1, 1930, Williams was run into by an automobile, resulting in the breaking of his right leg, four inches above the knee. He was carried at once to the Stacy-Chappell Hospital where he procured the services of Dr. Stacy. He remained at the hospital 83 days, when he was removed to a hospital at Middlesboro, Ky. The services of Dr. Stacy and the Stacy-Chappell Hospital were thereafter discontinued.

Williams brought this action to recover $25,000 damages of Dr. Stacy and the Stacy-Chapell Hospital, on the charge of malpractice. On a trial before a jury he was awarded $5,500.

Williams, in the practice of the case, and the court, in his instructions to the jury, considered the petition as containing a charge of general negligence. The correctness of this theory of the case must be determined by the allegations of the petition. A careful examination of it convinces us the practice of the case and the instructions of the court in this respect were not authorized by its allegations. To make accuracy assured, we state his cause of action in the language of the petition:

"These defendants of their gross negligence and carelessness failed and neglected to properly diagnose said break or injury, and in their further negligence and carelessness and as a direct result of their unskillful attempt to readjust and reset and co-apt said bones, the defendant, said C.B. Stacy, in whom it trusted to dress, treat and adjust said broken bone, wrongfully, improperly and unskillfully made an incision into his leg and made it necessary at a later date to cut off and remove a great portion from the said broken bone and then of their further gross and careless, unskillful and improper, conduct, attempted to place and did place a silver plate across said broken joint and in his femur and attempted and fastened same by means of screws, and then bound up the same and left his leg improperly secured until said screws came out of said plate and bound and imbedded themselves within the flesh of his leg and remained there for many days. * * * The defendants injected or caused to be deposited within said broken or injured area foreign substance in addition to said plate and screws, * * * and thereby caused gangrene or pus to set up in said injured parts; * * * that after he left said hospital he was compelled on account of the negligent way and manner treated and left by this defendant, to undergo a second operation. * * * No proper diagnosis was made of said broken femur when he was first received in said hospital, or at all, by these defendants and same was grossly neglected for a period of some 16 or 17 days. No proper precaution or care was used in treating said broken limb, after which the defendant wrongfully, improperly and negligently made said open incision, thereby causing an infection of said limb. * * * As a result of said wrongs and injuries he not only suffered great mental and physical pains, and will continue to suffer, so long as he lives, but he had to expend for additional doctors' bills, etc."

It is elemental a plaintiff must allege that which he wishes to prove, and his pleading and proof must agree. "Negligence may be alleged generally. Illinois Cent. R. Co. v. Cash's Adm'x, 221 Ky. 655, 299 S.W. 590. Under such an allegation of negligence the plaintiff may prove any act of negligence of the defendant [Monroe v. Standard Sanitary Mfg. Co., 141 Ky. 549, 133 S.W. 214], but, where he alleges special acts of negligence [L. & N.R. Co. v. Kirby, 173 Ky. 399, 191 S.W. 113; L. & N.R. Co. v. Mitchell, 162 Ky. 253, 172 S.W. 527; C. & O.R.R. Co. v. Cooper, 168 Ky. 137, 181 S.W. 933; Pullman Co. v. Pulliam, 187 Ky. 213, 218 S.W. 1005; L. & N.R. Co. v. Morgan's Adm'r, 225 Ky. 447, 9 S. W. (2d) 212; Park Circuit & Realty Co. v. Coulter, ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT