Tallon v. Spellman
| Decision Date | 31 January 1939 |
| Citation | 302 Mass. 179,19 N.E.2d 33 |
| Parties | CONRAD TALLON v. MARTIN H. SPELLMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 25, 1937.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.
Negligence Physician and surgeon. Evidence, Presumptions and burden of proof.
In the absence of expert medical testimony to that effect, a finding of negligence of the "visiting surgeon" at a hospital was not warranted by evidence that, no foreign substance being disclosed by x-rays of a chest wound near the pleura he treated it by causing it to be washed and closed without probing and supervised further treatment for eleven days though later pus appeared and the wound did not heal during a period of treatment with which he had nothing to do and at the end of several months a small piece of wool fabric was removed from the wound, which then healed rapidly.
TORT. Writ in the Superior Court dated September 18, 1935. After a trial before Walsh, J., he ordered a verdict for the defendant and reported the case to this court with the stipulation described in the opinion.
A. Auger, for the plaintiff. H. F. Hathaway, for the defendant.
This is an action of tort brought on behalf of the plaintiff to recover damages for alleged malpractice of the defendant, who is a surgeon. At the close of the evidence a judge of the Superior Court directed a verdict for the defendant and reported the case to this court on a stipulation of the parties that, if the case should have been submitted to the jury, judgment is to be entered for the plaintiff in the sum of $500; otherwise, judgment is to be entered for the defendant.
Evidence introduced by the plaintiff tended to show the following facts: When about eleven years old the plaintiff, in the early part of January, 1935, was injured while coasting. A runner of the sled of another boy struck the plaintiff, went through his clothing, and made a wound in his chest. He was brought to a hospital, where he was examined by the defendant, who was "visiting surgeon," and another doctor, who was "house officer.
" The defendant directed the taking of x-rays, the result of which was negative. Under his direction the wound was washed with "green soap" -- one-half strength alcohol and iodine was used -- the wound was closed by two interrupted horsehair sutures, and antitoxin was injected in the plaintiff's arm. He remained in bed at the hospital for nine days, in which period he was treated daily by the "house officer" and seen by the defendant on his daily rounds of the hospital. After an eleven-day stay, he went home on January 14, and thereafter for a period of about two months visited the out-patient department of the hospital weekly and was treated by the "house officer." During this period pus appeared in the wound and on two occasions the "house officer" picked from it some threads. At the end of three months the wound was only partially healed and he was taken to another hospital, where he remained two days. There was at that time a "pussy" discharge from the wound. The records at that hospital showed: of a doctor. Two weeks afterwards the wound had healed.
The defendant's testimony is here summarized. The word "sinus," appearing in the records of the second hospital to which the plaintiff went, means a tract leading from the outside into a portion of the wound. This leaves a little opening for a discharge. It usually takes several months for the formation of a sinus of this type; it would not form within eleven days from the time of the accident, After a sinus does form, it is easier to find a foreign substance, usually at the bottom of the sinus. It assists a surgeon in finding such a substance.
The defendant's term of service as "visiting surgeon" was the month of January and he did not serve in that capacity again until the month of July. Upon examination of the plaintiff at the time he entered the hospital the defendant found a lacerated wound over the left breast. The chest wall was exposed and bleeding some. Directly under the wound was the pleura, which was only one quarter inch thick between the ribs. If the pleura became injured during the treating of the wound, the lung would collapse. The defendant directed the "house officer" to give the treatment earlier described. He told the "house officer" what to do "all at one time on the first day." He also told him to be careful in any scraping of the wound because the chest wall was so thin. The purpose of the treatment directed and given was to get out all the foreign material possible, to give anything left in the wound room to get out, and to drain and help evacuate the wound of pus or foreign material. In his daily rounds of the hospital the defendant saw the plaintiff up to January 14. His temperature began to subside on the fifth day after entering the hospital, and on the seventh day it was normal. The defendant never saw the plaintiff after January 14, when the plaintiff left the hospital with instructions to return to the out-patient department for further treatment.
The defendant also testified that when the plaintiff left the hospital his wound was discharging serum, which is not pus; that such a wound as the plaintiff received would take three or four months to heal; that if foreign matter was in the wound it would not cause more trouble; that the wound would heal up to the place where there was foreign material and leave a sinus; that the condition of the wound at the time the plaintiff left the hospital was such that he could go about his daily pursuits during the process of healing. He testified that the treatment given to the plaintiff was good surgical treatment and that no more could be done for the plaintiff at the hospital than was in fact done.
...
To continue reading
Request your trial