Talley v. Whitlock

Decision Date07 December 1916
Docket Number6 Div. 309
Citation199 Ala. 28,73 So. 976
CourtAlabama Supreme Court

Rehearing Denied Jan. 18, 1917

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by James Howard Whitlock, by next friend, against Dr. D.F Talley. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449. Affirmed.

David S. Anderson and Frank Dominick, both of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.


This action is for negligence in the performance of a surgical operation. Defendant made an incision in plaintiff's chest wall, and placed therein a tube for the purpose of draining pus. It is alleged that the tube was negligently inserted or secured therein, and that it slipped into the cavity of plaintiff's body, preventing him from recovering, causing him pain and injury, and making necessary a second operation to relieve him by removing said tube.

The averment of negligence in the one count of the complaint on which the trial was had is:

"Defendant was a practicing physician and surgeon in the city of Birmingham, Ala., and as such undertook *** to perform a surgical operation upon plaintiff and to leave in the wound or cut made by said surgical operation a draining tube. Plaintiff avers that defendant so negligently or unskillfully conducted himself in that regard that as a proximate consequence of said negligence said drainage tube became or was misplaced in plaintiff's body and remained in his body so misplaced for a long time," etc.

It has been repeatedly ruled by this court that, where the facts stated in the complaint are sufficient to show the duty, and that the defendant negligently failed to do or perform this duty, it is not necessary to define the quo modo or to specify the particular acts of diligence that should have been employed in the performance of such duty. McCary v A.G.S.R.R. Co., 182 Ala. 597, 62 So. 18; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Southern Railway Co. v. Arnold, 162 Ala. 570, 50 So. 293; Gray Eagle Coal Co. v. Lewis, 161 Ala. 415, 49 So. 859; Southern Railway Co. v. Stewart, 153 Ala. 133, 45 So. 51; Southern Railway Co. v. Burgess, 143 Ala. 364, 42 So. 35; L. & N.R.R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L.R.A. 620.

The complaint was not subject to demurrer for the generality of its averment of negligence.

A civil action for malpractice against a physician and surgeon may be sustained, on proof of a failure to exercise such reasonable and ordinary care, diligence, and skill in respect to the duty so assumed and undertaken as physician and surgeon, such care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice, ordinarily employ and exercise in a like case. Robinson v. Crotwell, supra; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann.Cas.1912D, 863; Shelton v. Hacelip, 167 Ala. 217, 51 So. 937; McDonald v. Harris, 131 Ala. 359, 31 So. 548; 30 Cyc. 1575; 14 Am. & Eng.Ency.Law (1st Ed.) pp. 76, 78. But there is no rule of responsibility which requires of the physician or surgeon "infallibility in the diagnosis or treatment of disease." Hamrick v. Shipp, 169 Ala. 171, 52 So. 932; Robinson v. Crotwell, supra.

The second, third, fourth, and fifth assignments of error are based upon the overruling of objections to questions propounded to Drs. Fields and Clements, and of motions to exclude the answers. Each of these physicians and surgeons was engaged in like practice, and in the same neighborhood, with the defendant, at the times of both operations on plaintiff. Dr. Fields had testified that, with the assistance of Dr. Clements, Fields operating, he removed the tube from that portion of the body of plaintiff whence the pus was discharged. He described the condition of the tube when he removed it, and the tube was exhibited to the jury in like condition. He was then asked: "Would you as a surgeon--could you as a surgeon tell whether or not there had been any attachment to that tube?" The witness replied: "I looked for it, and could not see any." The question to, and the reply of the witness was not touching the opinion of a surgeon as to how the witness, as a surgeon, would have secured the tube in plaintiff's body. It was sought to elicit only that when he removed the tube from plaintiff's thoracic cavity there was no attachment thereto. The observed data were for the jury's consideration. Wig. Ev. § 1410. Moreover, the witness had testified without objection that he found the tube as exhibited; that there were no marks or signs or holes or anything on or about the tube indicating that there had been an attachment thereon; that witness "noticed to see if such had been the case, and none was discoverable."

On the other hand, if the objection to the answer was that the answer was not strictly responsive to the question, only the party asking the question could object to the answer on this ground. Cent. of Ga. Ry. Co. v. Chicago Co., 169 Ala. 287, 291, 53 So. 832; In re Dunahugh, 130 Iowa, 692, 107 N.W. 925; Merkle v. Bennington, 58 Mich. 156, 24 N.W. 776, 55 Am.Rep. 666; Jones v. New York Cent., 46 A.D. 470, 61 N.Y.Supp. 721.

So, of the question to witness, Dr. Clements, "Was there any sign of any hole or string or pin, safety pin or otherwise, or any kind of attachment, when you first took that tube out?" and of the answer, "No, sir." If the testimony had been incompetent (which we do not concede) plaintiff's counsel's consent "that it will go out" might not have been sufficient for the delicate, important, and difficult task of removing the prejudicial effect of evidence improperly admitted--the task, incumbent on the party causing its admission, of eradicating the "poison." Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann.Cas.1916E, 565. When, however, all of the testimony of the witness Clements as to the condition of the tube when taken from plaintiff's thoracic cavity is considered, we find no error in the court's ruling upon the introduction of this evidence. It was but the statement of a fact--of the condition of the tube when taken from plaintiff's body by Dr. Fields. The case of Watson v. Adams, supra, has no similarity in facts to the case at bar.

Charge A1, given at plaintiff's request, instructs the jury that the alleged negligence must have been the direct cause of the injury complained of, though there was an intervening agency which would not have interposed and contributed to the injury had it not been for the original, direct causation--that is, the negligence complained of. Armstrong, Adm'r, v. M.S.R. Co., 123 Ala. 233, 26 So. 349; Briggs v. B.R.L. & P. Co., 188 Ala. 262, 66 So. 95; L. & N.R. Co. v. Jones, 83 Ala. 376, 3 So. 902; 2 Mod.Amer.Law, p. 122, § 14 et seq. The old "Squib" Case (Scott v. Shepherd, 2 Wm. Blackstone's Rep., 892; s. c. 3 Wilson, 403) is in point. 1 Chitty on Pleading (16th Ed.) § 142, p. 183. Charge A1 was explanatory of defendant's charge No. 11.

Given charge because, B1, requested by plaintiff, is as follows:

"The court in its charges given does not mean that Dr. Talley would not be responsible for his negligence, if any there was, in or about anchoring the tube, even though he used the best method of anchoring, if he did use the best method."

Under the evidence the effect of the charge was to instruct the jury that, even though the surgeon may have used the best method of anchoring the drainage tube in the first instance, yet he would be responsible for his negligent failure to exercise the reasonable and ordinary care, skill, and diligence required of surgeons in the same general neighborhood, in doing the same service, i.e., placing the drainage, as well as anchoring it, after the "best method." If the method of anchoring the tube was the best, but defendant was negligent in the execution of that method, he would nevertheless be liable under the averment of negligence of the count, where, after showing his duty as operating surgeon, it is averred that:

"The defendant so negligently and unskillfully conducted himself in that regard that, as a proximate consequence of said negligence, said drainage tube became or was misplaced in plaintiff's body," etc.

Charge D was properly given at plaintiff's request.

Given charge C1, for plaintiff, exacted no higher degree of care, skill, and diligence than that declared in defendant's given charges 5, 6, and 8, which was the measure of duty of the physician and surgeon in such a case in any community, though the degree of care, skill, and diligence exacted of practicing physicians and surgeons of different communities may not necessarily be the same.

Refused charge 2 does not take into consideration the proper securing in place of the drainage tube. The defendant might have put the tube in the proper place and yet negligently secured it therein. But even if this charge was not subject to criticism, the defendant had the benefit of it under given charges 5 and 6.

Defendant's charge 3 was properly refused, for the reason that it predicated the alleged misplacement to the resident physician at the Hillman Hospital, and pretermitted inquiry of the proper placement and securing of the tube in the first instance by the defendant. The subsequent act of another was no defense for any negligence chargeable to the defendant, unless that act of that other was the sole proximate cause of the injury complained of.

Assignments of error numbered from 14 to 17, inclusive, are not insisted on in argument of counsel, and need not be discussed. Georgia Cotton Co. v. Lee, 72 So. 158.

The evidence was sufficient to take the case to the jury on the idea that the tube was not...

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