Van Sickle v. Doolittle

• Decision Date: 24 January 1916
• Docket Number: 29933
• Citation: 155 N.W. 1007,173 Iowa 727
• Parties: THOMAS H. VAN SICKLE, Administrator, Appellant, v. M. E. DOOLITTLE, Appellee
• Court: Iowa Supreme Court

155 N.W. 1007

173 Iowa 727

THOMAS H. VAN SICKLE, Administrator, Appellant, v. M. E. DOOLITTLE, Appellee

No. 29933

Supreme Court of Iowa, Des Moines

January 24, 1916

Appeal from Sioux District Court.--W. D. BOIES, Judge.

ACTION for damages consequent on alleged malpractice resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.

Reversed.

Shull Gill, Sammis & Stillwill, and C. A. Plank, for appellant.

Snell & Randall and W. E. Johnston, for appellee.

LADD J. DEEMER, GAYNOR and SALINGER, JJ., concur.

OPINION

LADD, J.

The plaintiff brought this action as administrator of the estate of his deceased daughter, Marjorie Van Sickle, who died at the age of nine years and some months, Wednesday, Sept. 20 1911. She appears to have been in good health until the Saturday previous, and then complained only of a headache. On Sunday, as she had not recovered, the defendant, a physician of the homeopathic school of medicine, was called, and treated her until Wednesday afternoon, when she died. The allegations of the petition are that defendant failed to exercise ordinary care and skill in endeavoring to cure the child of her ailment, in that he "neglected to see her with such frequency as the case demanded; by neglecting to give her proper medicine and skillful treatment; by neglecting and refusing to do anything for her relief and cure when it became apparent that she was in a dangerous and precarious condition; and by unskillfully and negligently administering to her certain medicine, the ingredients of which are not fully understood and known to this plaintiff, but which was injurious to her at the time of its administration, and which the defendant, if he had used proper care and skill, ought not to have administered to said child in the circumstances at said time existing". The answer was a denial of the above allegations. The only errors assigned are: (1) Sustaining defendant's motion to instruct the jury to return a verdict for defendant; and (2) sustaining defendant's objections to the questions propounded to the witness Fettis. The last point may first be disposed of.

I. J. M. Fettis, qualified as a physician of the regular or allopathic school, testified that he knew nothing of the homeopathic method of treatment of diseases as to manner of diagnosis or method of treatment. The conditions and symptoms of the girl from Saturday until the time of her death, as shown by the evidence, including the treatment given her by the defendant, were recited, and the doctor was asked: "What, in your opinion, as indicated by the symptoms revealed in the question, was the child probably suffering from?" An objection, with others, that the witness was incompetent, for that he belonged to a different school of medicine than defendant, was sustained. All reference to medicines administered was withdrawn and the question renewed, and the same objection sustained. These objections ought to have been overruled. Though, according to the evidence, the homeopathist is controlled by symptoms, in determining upon and prescribing treatment, and might not be negligent even though he did so without ascertaining the particular malady of the patient, this does not preclude inquiry as to the disease or diseases with which she may have been afflicted, and then inquiring of a homeopathist what would have been the appropriate remedy therefor, and in this manner proving that improper treatment was given. That the witness belonged to a different school of medicine did not disqualify him from expressing an opinion as to what ailed the patient. Methods of diagnosis do not differ in the different schools, and this appeared from the subsequent examination of the witness. Moreover, Sec. 2576 of the Code, in providing for the issuance of licenses to practice medicine, exacts that each candidate for examination in any school of medicine shall be given the same set of questions "covering anatomy, physiology, general chemistry, pathology, surgery and obstetrics", and these subjects are taught by the same teachers to students of the several recognized schools of medicine. In materia medica, therapeutics and the principles and practice of medicine, a set of questions is used corresponding to the school of medicine which the applicant desires to practice. As to these latter subjects, the competency of the witness was not shown; for medicines and methods of using them differ somewhat in different schools. But the science of pathology is common to both schools, with nothing peculiar to either; and therefore, the witness should have been allowed to answer.

II. There was no evidence in the record that the defendant administered medicine either of strength or kind which actually injured the child. If he is to be held liable, it must be on one or all the other grounds; that is, that he neglected to give her proper medicine and treatment, failed to administer anything for her relief and cure, although she was in a precarious condition, and neglected attending to her with ordinary diligence when sick. That he held himself out as a physician qualified to treat diseases according to the homeopathic school of medicine, and engaged to treat Marjorie Van Sickle, is not questioned. In so doing, he was bound to exercise the degree of care and skill, according to his system, ordinarily possessed by physicians practicing in similar localities. Bowman v. Woods, 1 Greene 441; Ferrell v. Ellis, 129 Iowa 614, 105 N.W. 993. Bearing in mind not only that the evidence must have tended to prove negligence in one of the respects charged, but that the patient must have been injured in some manner thereby, in order to carry the case to the jury, let us turn to the evidence. It is somewhat peculiar; and, in order to ascertain whether a prima-facie case was made out, it will be necessary to set out the evidence in detail.

Mrs. Van Sickle, the mother of decedent, testified that the child had never had any serious sickness before; that she complained of a headache Saturday, was given castor oil, which caused her bowels to move the next morning, when, as her headache continued, she was given a bath and put to bed; and that her husband went for the doctor after 12 o'clock M., and he arrived at 2 o'clock P. M.

"He asked me what I thought of little Marjorie, and I told him I thought she was bilious, and he said that there wasn't such a thing, and if there was, it was hereditary; and then he fixed up two little vials of medicine. He didn't do anything with reference to examining the child or asking her questions. I took the thermometer and took her temperature, and it was 102. She was dressed and lying on the couch in the front room. He didn't go to her and make an examination. He sat on the couch and kind of toyed with her, I thought, and talked a little bit, but I don't remember what he said. I don't think he was there more than half an hour, and when he left he said she was not very sick, and that she would be up in the morning. He left two vials of medicine with instructions that they were to be given five and seven drops every hour that afternoon. The vials that he left are marked Exhibits 'A' and 'B'. Dr. Doolittle put the writing on the stickers that appear on these bottles. He filled them with medicine himself and got it out of his suit case right there in the room. He said to give 5 to 7 drops out of the large bottle for the fever, and he fixed the first dose and I gave it to her, and I gave her a dose after that every hour until about 8 or 9 o'clock. She fell asleep about 8 o'clock, and I didn't give her the medicine that she should have had at 9 o'clock. I think he said to give her 5 to 7 drops out of the smaller vial on Monday morning, for the nerves."

She gave her two such does, and then less, as the child was not quite so nervous. As she was up and around on Monday, it was thought that she was better. She was put to bed at 11 o'clock A. M.; but when she woke up, two hours later, she was covered with perspiration, and the medicine was discontinued by her mother. She complained of headache. On Tuesday morning, she seemed better, and played with her dolls; but by 9 o'clock A. M., Mrs. Van Sickle became alarmed, and sent for defendant. He promised that "he would be right up"; but, although called at about 9 o'clock A. M., he did not reach the child until 2 o'clock P. M. She seemed to be quite excited, complained of the headache, but of no other pain. On the arrival of the doctor, she was all covered with perspiration.

"He said, 'She ain't any worse and I think she is better don't you', and I said, 'No, she looks quite bad to me', and then he said, 'Well, you can continue the same medicine'. I asked what for, and said she had no fever, and he said it was to keep the fever from coming back. I said to my husband in the presence of the doctor, that I didn't see the use of giving her medicine as she hadn't a bit of fever, but he said that the doctor ought to know. The doctor didn't say anything, but he walked out into the dining room with Mr. Van Sickle, and they sat down there. Pretty soon I went out and asked him what he thought was the matter with the child, and he said he thought it was typhoid fever. I said it could not be, she is all perspiration. And then he said, 'Well you might call it brain fever'; and I said. 'It is not brain fever, for she knows everything'; and then he just laughed and said, 'We might call it small pox'; and I said, 'If you don't know what ails the child, you bring up another doctor and we will hold a consultation and see what ails her'. I says, 'Get Dr. Dick, or a doctor from Sioux City, or anybody'. He says, 'You can't very well afford that. Marjorie isn't very sick and will be up in the morning'. He told Mr. Van Sickle...