Tady v. Warta

• Decision Date: 15 January 1924
• Docket Number: 22609
• Parties: ROSIE TADY, APPELLANT, v. J. J. WARTA, APPELLEE
• Court: Nebraska Supreme Court

196 N.W. 901

111 Neb. 521

ROSIE TADY, APPELLANT, v. J. J. WARTA, APPELLEE

No. 22609

Supreme Court of Nebraska

January 15, 1924

APPEAL from the district court for Douglas county: CHARLES A. GOSS JUDGE. Affirmed.

AFFIRMED.

George H. Merten, for appellant.

Smith Schall, Howell, Howard & Sheehan, contra.

Heard before MORRISSEY, C. J., GOOD and ROSE, JJ., REDICK, District Judge.

OPINION

REDICK, District Judge.

Action against a physician for malpractice. Defendant was a specialist, known as an oculist and aurist, and was employed by plaintiff to treat her for sinus trouble. An operation being necessary in the judgment of defendant, for the purpose of treating an infected antrum from which plaintiff was suffering, he used a sharp steel chisel about five inches long, placing it in the nostril and driving it through the antrum bone by the use of a small steel mallet. In doing this a small piece was broken off the point of the chisel and remained imbedded in the bone. Plaintiff testifies that the instrument was broken while the doctor was removing it, when he gave it a twist and a jerk, while defendant claims it broke after he had tapped it two or three times with the mallet. The negligence charged is: (1) That the use of the chisel and mallet was unnecessary and an improper method of treatment; (2) the breaking of the point of the chisel. At the close of plaintiff's evidence defendant moved for a directed verdict, which was denied; but at the close of all the evidence defendant's motion to discharge the jury and dismiss the case was sustained. Motion for new trial having been overruled, plaintiff appeals.

The first error assigned is the sustaining of defendant's motion to dismiss the case. Plaintiff contends that, looking upon the plaintiff's evidence in the most favorable light to plaintiff, as we must do for the purpose of this question, there was sufficient evidence to go to the jury as to defendant's negligence. Thus viewing the evidence, the following facts appear:

The chisel was driven through the maxillary bone in which it was imbedded; that in taking out the chisel the doctor twisted it and jerked it; that the point was broken off and extended partly into the sinus. Two specialists who afterwards treated plaintiff drained the antrum without the use of a chisel. These doctors called by plaintiff testified that the method adopted by defendant was one of the usual methods, and not an improper one; that the instrument will break occasionally without any fault of the operator; that might be caused by an undiscoverable defect in the instrument; the fact that it broke does not indicate lack of care. One of them expressed the opinion that in the present case the breaking was a mere accident.

The claim that the method of operation was improper must fall in view of the testimony of the experts that it was one of the usual methods, and its selection was a matter for the exercise of the doctor's judgment; and, even though he was mistaken (which was not shown), no liability attaches under such circumstances.

Plaintiff argues that the jury may logically infer from the fact that the chisel broke that defendant negligently used too much force with the mallet. He says: "From said evidence it is just as consistent, logical, and sensible to infer that the instrument broke because the blows struck by the mallet were too severe, as to infer a defect in the instrument. But, no matter which inference be taken, it is still a question for the jury to determine which inference should be drawn. * * * For this court to hold, or to infer, from the above quoted evidence, that there was a defect in the instrument is a mere guess." Is it any less a guess for the court or jury to hold that the breaking was caused by too much force? An inference must be based upon some fact from which it properly may be drawn; there is no evidence that the instrument was defective or as to the amount of force used in striking it, so that neither suggested inference is reached by a logical deduction from facts proved, and both would be mere guesses; the evidence furnishes no standard by which the jury may select the proper inference. The breaking of the instrument might have been caused by a defect therein, by use of too much force, by negligence of defendant, or by a mere accident, and the evidence points to neither one of these possibilities in preference to the others. If the instrument broke at the second or third tap of the mallet, it would afford an inference that more force was used than the instrument would bear, but the amount of force to use was for the judgment of the doctor, and the fact affords no inference of negligence unless the doctrine of res ipsa loquitur is applicable; that it is not applicable seems well settled.

In Ewing v. Goode, 78 F. 442, in an action for malpractice in removing a cataract from plaintiff's eye,...