Stevenson v. Yates

• Decision Date: 07 February 1919
• Citation: 208 S.W. 820,183 Ky. 196
• Parties: STEVENSON v. YATES.
• Court: Kentucky Court of Appeals

208 S.W. 820

183 Ky. 196

STEVENSON v. YATES.

Court of Appeals of Kentucky.

February 7, 1919

Appeal from Circuit Court, Kenton County.

Action by Louise Stevenson against S. Annie Yates. From a judgment for defendant, plaintiff appeals. Reversed, with directions to grant new trial.

B. F Graziani, of Covington, for appellant.

Robert C. Simmons, of Covington, for appellee.

THOMAS J.

The appellee and defendant below, S. Annie Yates, is a physician and maintains an office in the city of Cincinnati, Ohio. The appellant and plaintiff below, Mrs. Louise Stevenson, is a married woman living in Covington, and at the time of the matters herein complained of she was about 42 years of age having been married about 15 years, and had never borne children.

Defendant had been plaintiff's physician for some 10 years or more but it had been some time prior to February, 1915, since defendant administered in any way to plaintiff. On that day plaintiff visited defendant's office and stated to her certain symptoms which plaintiff had experienced and was experiencing, and at the time requested defendant to take charge of her case and submitted herself to defendant for proper treatment. This, of course, required as a prerequisite a proper diagnosis of plaintiff's affliction. Defendant made no physical examination, but stood behind the plaintiff while she was seated in a chair and held plaintiff's hands for about 10 minutes, when she told plaintiff that she was suffering with kidney trouble. The symptoms which plaintiff related to defendant were that she was suffering with shortness of breath, with pains in her back and stomach, and perhaps some others. At that time defendant prescribed for plaintiff and gave her different kinds of medicines, to be taken at prescribed times, sufficient to last for three weeks, during which time plaintiff was required to and did report to defendant her condition. Plaintiff continued to visit defendant's office at periods of about three weeks apart, each time reporting her condition and symptoms, as well as the effect of the medicines, until some time in June, when, not having been improved, and having experienced, as she says, a crawling sensation in the lower part of her abdomen, which she at that time reported to defendant and asked her if it could be possible that she was pregnant. Defendant told her that she was not pregnant, but that she was suffering with stomach and kidney trouble, and that her condition was approaching near Bright's disease.

Another quantity of medicine was prescribed, and plaintiff commenced to visit defendant's office more frequently, and continued to do so until the 15th day of October in that year. Throughout the whole time plaintiff had no periods of menstruation, they being entirely suppressed, a fact which defendant also knew. On the 19th day of October, four days after plaintiff's last visit to defendant's office, there appeared a slight hemorrhage from plaintiff's privates, of which defendant was notified by telephone, as well as notified of other conditions and symptoms of plaintiff; and defendant expressed satisfaction over what she said was a return of plaintiff's menses, and asked plaintiff to visit her office on the following Saturday, which was the 23d of October.

Plaintiff continued to take defendant's treatment, although suffering considerably, and her condition not improving, until Saturday morning, when another physician was called in, who discovered that plaintiff was then in labor and about to become a mother. She was removed to a hospital, where about 7 o'clock that night a fully developed dead child was taken from her with aid of instruments after administering to her an anæsthetic. She stayed in the hospital about two weeks, and returned home in a weakened condition and very nervous. It became necessary some 60 days thereafter to return to the hospital, where a slight operation was performed, due to conditions resulting from the childbirth. Her weakened and nervous condition continued from that time, according to her testimony, till the day of the trial.

Plaintiff brought this malpractice suit against defendant, alleging unskillfulness in properly diagnosing her case, and both unskillfulness and negligence in the treatment administered, as well as advice given relative to plaintiff's conduct while in a state of pregnancy. She alleged that the medicine administered was of a very strong character, and produced pains and rigors within about one hour after being taken, causing plaintiff to become nauseated and very nervous. She furthermore alleged that defendant improperly advised her to continue to do her housework, which she had done throughout her married life, and which consisted in cooking, washing, ironing, and general house-cleaning, together with operating a sewing machine, and perhaps other labor which it was charged was improper to be performed by a pregnant woman.

The answer was a denial only of the negligent acts charged. Upon the trial, and at the close of plaintiff's testimony, the court sustained defendant's motion for a peremptory instruction for the jury to find in her favor, which resulted in a verdict accordingly, followed by a judgment dismissing the petition, and to reverse it plaintiff prosecutes this appeal.

The law is well settled in this and we believe in all jurisdictions that a physician or surgeon is answerable for an injury to his patient resulting from want of the requisite knowledge and skill, or from the omission to use reasonable care and diligence in the treatment of the patient or to exercise such care and diligence to discover the patient's malady. 21 R. C. L. 379; Dorris v. Warford, 124 Ky. 768, 100 S.W. 312, 30 Ky. Law Rep. 963, 9 L. R. A. (N. S.) 1090, 14 Ann. Cas. 602; Van Meter v. Crews, 149 Ky. 335, 148 S.W. 40; Acton v. Smith, 150 Ky. 703, 150 S.W. 854; Mason et al. v. Meloan, 165 Ky. 582, 177 S.W. 435; Burk v. Foster, 114 Ky. 20, 69 S.W. 1096, 24 Ky. Law Rep. 791, 59 L. R. A. 277, 1 Ann. Cas. 304; Barnett's Adm'r v. Brand, 165 Ky. 616, 177 S.W. 461.

Concerning the standard of knowledge and skill and the required care which the physician should possess and exercise under this rule, it is quite generally agreed that he is bound to bestow such reasonable and ordinary care, skill, and diligence as physicians and surgeons in similar neighborhoods and surroundings engaged in the same general line of practice ordinarily have and exercise in like cases. R. C. L. 381, and cases above referred to.

Plaintiff, upon the trial, after testifying in substance as hereinbefore indicated concerning the diagnosis of her case, the beginning of the treatment, etc., said:

"Q. What happened after you took some of this medicine? A. Well, I continued to stay the same. I never got any better. I would feel sick, cramps in my limbs, and shortness of breath. Q. Now, you began to take the medicine in February? A. Yes, sir. Q. And

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