Van Meter v. Crews

• Decision Date: 21 June 1912
• Citation: 149 Ky. 335,148 S.W. 40
• Parties: VAN METER v. CREWS.
• Court: Kentucky Court of Appeals

148 S.W. 40

149 Ky. 335

VAN METER v. CREWS.

Court of Appeals of Kentucky.

June 21, 1912

Appeal from Circuit Court, Fayette County.

Action by Laura Crews against Benjamin F. Van Meter. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Allen &amp Duncan, of Lexington, for appellant.

A. F Byrd and J. A. Edge, both of Lexington, for appellee.

HOBSON C.J.

Miss Laura Crews, who is about 30 years of age, brought this suit against Dr. B. F. Van Meter, charging that he had operated on her without her consent, and had performed the operation unskillfully, by reason of which she had suffered great pain and her health had been permanently impaired. Dr. Van Meter defended the action on the ground that the plaintiff consented to the operation, and that it was performed with proper care. The facts are briefly as follows:

Miss Crews had been suffering with a pain in the right side of the abdomen for about 12 or 18 months, and for two months she had been suffering with a pain on the left side of the abdomen. She called Dr. Van Meter, who, after making an examination of her, prescribed for her. After this she did not improve, and he told her he was not satisfied with the examination he had made at his office, and would like for her to go to the hospital, where he could make the examination more satisfactorily. She went to the hospital, and there, after the usual preparations had been made and several of her relatives had been summoned, she was placed under an anæsthetic and an operation performed, which consisted in his taking out one of the ovaries and making an adjustment of the other. After this she remained at the hospital until the wound healed, and then went home; but she was unable to stand straight, and later had to submit to another operation, all of which, it is charged, was due to the unskillfulness of the first. The proof for the defendant showed that there was no neglect on his part, and that what he did was according to the approved practice in such cases, although it turned out, in Miss Crews' case, not to relieve her.

On this evidence the court instructed the jury as follows:

"(1) If the jury believe from the evidence that the defendant, B. F. Van Meter, performed the operation upon the plaintiff without the consent of the plaintiff, the jury should find for the plaintiff; or, if the jury believe from the evidence that the defendant, whether he performed the operation with or without the consent of the plaintiff, performed said operation unskillfully, and thereby caused the plaintiff to suffer mental or physical pain, or become injured in her health, when, but for such unskillfulness, and if said operation had been performed skillfully, the plaintiff would not have been caused to suffer such pain, or her health would not have become so impaired, the jury, should find for the plaintiff.

"(2) The jury should find for the defendant, unless the jury believe from the evidence that the defendant performed the operation upon the plaintiff without the consent of the plaintiff; or unless they believe from the evidence that the defendant, whether the operation was performed by the defendant with the consent of the plaintiff or not, performed said operation unskillfully, and that by such unskillful performing of said operation the plaintiff was caused to suffer mental or physical pain, or her health became impaired by reason of the fact that such operation had been unskillfully performed.

"(3) If the plaintiff assented in any way to the performing of the operation on her by the defendant, this was a consent on the part of the plaintiff that said operation might be performed.

"(4) The defendant, in performing the operation upon the plaintiff, was not required to possess or exercise the highest degree of skill; but in performing said operation the said defendant was bound to possess and exercise that degree of skill usually possessed by the profession of surgeons generally in, this section of the country. If, however, in the performing of said operation, the defendant failed to do so with that skill which is usually possessed by the profession of surgeons in this section of the country, the skill used by the defendant in performing said operation was not the degree of skill required by the law.

"(5) If the jury find for the plaintiff, and find for her upon the ground that the operation was performed without her consent, but the jury further believe from the evidence that the operation in fact was necessary and proper for the preservation of the life or the health of the plaintiff, and that it was skillfully performed, the jury should find for the plaintiff in nominal damages only, unless the jury also believe from the evidence that the defendant performed the operation willfully, when he did not believe, and did not have reasonable grounds to believe, that the plaintiff was willing that it should be performed, or had consented thereto.

"(6) If the jury find for the plaintiff, and the jury believe from the evidence that the defendant performed the operation unskillfully, and that by such

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