Thaggard v. Vafes

• Decision Date: 22 November 1928
• Docket Number: 6 Div. 178
• Citation: 218 Ala. 609,119 So. 647
• Parties: THAGGARD v. VAFES.
• Court: Alabama Supreme Court

119 So. 647

218 Ala. 609

THAGGARD v. VAFES.

6 Div. 178

Supreme Court of Alabama

November 22, 1928

Rehearing Denied Jan. 24, 1929

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for wrongful death by Janie Vafes, as administratrix of the estate of Leon W. Hylton, deceased, against R.A. Thaggard. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326. Affirmed.

Charge that negligence could not be presumed, because patient died after given dose of medicine, held properly refused, as invading province of jury (Code 1923, § 5696).

The following charges were refused to defendant "X. I charge you that if you are reasonably satisfied from the evidence that Dr. Donald was a reputable and skillful physician, and that after examination he advised Dr Thaggard to administer antisyphilitic treatment, which skilled physicians in Birmingham in the same line of practice used, you must find for the defendant."

"Y. I charge you that Dr. Thaggard had a right to rely on the examination made by Dr. Donald."

"B. I charge you that you cannot find a verdict for plaintiff by reason of the fact that he failed or refused to visit plaintiff's intestate on the day of his death."

"D. I charge you that you cannot presume or infer any negligence from the mere fact that plaintiff's intestate died after being administered a dose of medicine by the defendant."

Thos. J. Judge and W.E. Howard, both of Birmingham, for appellant.

S.R. Hartley, of Birmingham, for appellee.

BROWN J.

This action is by the administratrix of the estate of Leon W. Hylton, deceased, against the appellant for wrongfully causing his death. Code of 1923, § 5696.

The counts of the complaint, A and B, on which the case was tried, in substance, aver that on and prior to the 26th day of August, 1926, the defendant was a practicing physician in the city of Birmingham, Alabama, and as such undertook for a reward to treat the plaintiff's intestate for an illness or disease of which he was then suffering, and that the defendant so negligently conducted himself in that regard that plaintiff's intestate died as a proximate consequence of defendant's negligence.

While the authorities are agreed that a mere breach of contract is not a wrongful or negligent act, within the meaning of the statutes giving a right of action for wrongfully causing death, yet they are also agreed that the negligent or tortious breach of a duty to the person whose death is caused thereby is within the statute, though such duty arises out of contract. Peck v. Henderson (Ala.Sup.) 118 So. 262; 17 C.J. 1204, § 54; Blackburn's Adm'r v. Curd, 106 S.W. 1186, 32 Ky.Law Rep. 789; Randolph's Adm'r v. Snyder, 139 Ky. 159, 129 S.W. 562; 38 Cyc. 426; Dice's Adm'r v. Zweigart's Adm'r, 161 Ky. 646, 171 S.W. 195, L.R.A. 1916F, 1155.

The relation of physician and patient is not necessarily contractual, but may be consensual merely, and whether one or the other, when the physician assumes and undertakes to act in this relation, he incurs the consequent duty, exacted of the relation, that in the practice of the profession he will exercise that reasonable and ordinary care, skill, and diligence exercised generally by members of his profession in the same neighborhood, and a failure to observe this degree of care and diligence is negligence. This rule is elementary, and has its foundation in most persuasive considerations of public policy. Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann.Cas. 1912D, 863; 21 R.C.L. 375, §§ 22, 23, 26.

The averments of counts A and B allege sufficient facts to show that the defendant was under duty to exercise this degree of care and diligence, and a breach thereof, with proximate resulting injury, and the demurrers were overruled without error. Talley v. Whitlock, supra.

The evidence shows without dispute that the defendant undertook to treat Hylton as a patient, and in so doing administered to him, hypodermatically, a quantity of neosalvarsan or 606, which contained arsenic, a deadly poison; that this medicine was given without an examination of the patient's kidneys or urine by the defendant in his diagnosis; and plaintiff offered testimony of a physician residing in the same neighborhood, conceded to be qualified as an expert witness, which tended to show that such treatment was ill-advised and dangerous, if the patient had any symptoms showing that he was suffering from inflammation of the brain; and, if there were such symptoms, they were readily discoverable by an examination of the patient's heart, lungs, kidneys, pulse, and general condition. There was also evidence going to show that the dose was administered on Thursday, and on Sunday following the patient became desperately ill, and died; that before his death he developed marked symptoms of inflammation of the brain and arsenic poisoning; that such result would follow from the administering of neosalvarsan, if administered to a patient that was not in such condition as to react therefrom, or in too great quantity.

After these symptoms developed in Hylton's case, other physicians were called by his sister, and they refused to treat the patient without the presence of the defendant. Under these circumstances the court ruled without error in overruling the motion of the defendant to exclude the statement of the witness, Mrs. Vafes, that she called the defendant four or five times during the day and begged him to come. This evidence, in connection with the previous statement of the witness, that she had phoned to the defendant and informed him of the desperate condition of the patient, and his failure to come, and the further testimony that he did not come until she sent a car after him, and arrived only a short time before the patient died, tended to show a culpable disregard of his duty and a lack of interest in the patient's welfare.

It was permissible for the witness, Dr. Elkourie, to testify, after examining the patient, that his condition could have been brought about by arsenic poisoning. Carpenter v....