Vonault v. O'Rourke

• Decision Date: 23 May 1934
• Docket Number: 7244.
• Citation: 33 P.2d 535,97 Mont. 92
• Parties: VONAULT v. O'ROURKE.
• Court: Montana Supreme Court

33 P.2d 535

97 Mont. 92

VONAULT v. O'ROURKE.

No. 7244.

Supreme Court of Montana

May 23, 1934

Appeal from Third Judicial District Court, Deer Lodge County; R. E McHugh, Judge.

Action by Alice Vonault against J. L. O'Rourke. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with directions.

ANGSTMAN J., dissenting in part.

J. B C. Knight, of Anaconda, and Earle N. Genzberger, of Butte, for appellant.

T. P. Stewart and Sid G. Stewart, both of Anaconda, for respondent.

STEWART Justice.

This is an appeal from a judgment of the district court of Deer Lodge county in a malpractice action prosecuted by Alice Vonault against Dr. J. L. O'Rourke. Judgment for $2,200 was entered after verdict of the jury. New trial was denied and appeal taken to this court.

About the 1st of June, 1931, plaintiff consulted defendant as to her physical condition and was by him advised that she was afflicted with fibroid tumor and diseased appendix. Defendant recommended an operation for her relief. On June 4th it was agreed that the operation should be performed the next morning. The defendant told plaintiff to arrange for a room at St. Ann's Hospital, and that he would arrange for an operating room. The suggested arrangements were carried into effect and plaintiff entered the hospital that evening. The operation occurred between the hours of 8 o'clock and 10:50 on the morning of June 5th. Those present at the operation were the defendant Dr. O'Rourke, who performed the operation, Dr. John H. Noonan, who assisted, Dr. T. J. Kargican, who administered the anesthetic, Margaret Casy, then a student nurse, who acted as "sponge nurse," two other nurses, one of whom acted as instrument nurse, and the other who assisted in various ways, and a "sister" who had some official position with the hospital. Lizzie Reviere, a sister of plaintiff, went to the operating room with her and remained near the doorway during the operation; she saw a part of the operation but was not near enough to observe it all.

Plaintiff was prepared and dressed for the operation by a hospital nurse and the doctors. The operative field was cleansed and sterilized, and the patient was dressed in a "surgical gown" such as is ordinarily used in the circumstances. The gown opened at the back and came up to about the region of the collar bone. Over the gown a sheet was draped from the neck down; a towel folded in three folds was placed over the patient's chest. An ether mask was placed above the face. When the patient was first placed on the operating table there was a pillow under her head; this was later removed and her head allowed to rest on the table on a plane with the shoulders. After she had been "surgically anesthetized" by the use of ether her hands were brought up from her sides and folded upon her chest. The surgical gown was brought up and folded over the arms and a drop sheet left on top. At about this stage of the proceedings the head of the operating table was lowered so that the patient was left in what was termed a "Trendelenburg position" (that is, a position in which the body from the waist up was lower than the other part of the body). The ether was dropped on the mask at a rate not faster than it evaporated. Dr. Kargican devoted his entire attention to the administration of the anesthetic and had nothing to do with the operation proper.

The operation was successful and the patient obtained the desired relief. All agree as to the accuracy of the diagnosis and the beneficial result accomplished. At the conclusion of the operation plaintiff was returned to the hospital room and there delivered into the charge of Miss Johannah Driscoll, a graduate registered nurse. The nurse kept what is known as a chart or nurse's record. This record was in evidence and disclosed that plaintiff was returned to her room from the operating table at 10:50 o'clock a. m. The nurse testified that she immediately began to minister to the needs of her patient, and at 11 o'clock administered a salt solution. This solution was injected into the axillae just under the arms. The skin was perforated by two needles, each on an extension of a forked tube running from the receptacle in which the solution was contained. The chart denominates this a normal salt solution and designates the quantity as a "thousand cc," that is, about a quart. The solution was fed into the system slowly through the needles, and the operation consumed some time. At 11:15 Dr. O'Rourke visited the room and observed the patient. At that time plaintiff had not regained consciousness and probably did not do so until after the injection had been completed; at least the patient had no knowledge or recollection of such an injection, and in her testimony said: "I never had any injection of salt solution into my breast." This statement is not surprising in view of the fact that she also testified: "I awakened from the anesthetic some time late in the afternoon." At some time subsequent to the recovery of consciousness plaintiff felt a burning sensation on her chest, and upon examination it was found that she had a large blister which she described as about an inch thick and two inches long and an inch wide; the time of the discovery of this blister is in controversy. Plaintiff testified that while Dr. Kargican was administering the anesthetic she felt something drop on her chest as she was passing out, and that she felt the pain in her chest when she first came out of the ether, and that she called the attention of the nurse to the blister some time in the afternoon or evening of the day of the operation.

Mrs. Riviere, sister of plaintiff, and Miss Mary Sheehan, a friend, testified that during the afternoon or evening of the fifth they visited plaintiff in her room at the hospital and that at that time she mentioned this blister and said, "Look what they did to me." Plaintiff and her witnesses testified that there was no blister or blemish of any kind on her breast prior to her entering the operating room. This is substantiated by the defendant and by all who observed plaintiff prior to the operation. The nurse, Miss Driscoll, testified positively that the blister was not evident on the patient's chest when she returned to her room and when she administered the salt solution. She testified that there was no evidence of the blister and no complaint about it, and that it was not observed until the morning after the operation, June 6th. The notation on the chart as of 7 a. m. on June 6th is: "Blister on chest about one inch wide and three inches long. Zinc sterate powder and sterile dressing applied." Plaintiff testified that the blister was not only discovered on the evening of the 5th, but that the nurse opened it at that time and put talcum powder on it. Dr. O'Rourke testified that the blister was never called to his attention until his visit to plaintiff on the morning of the 6th, which the chart shows occurred at 7 o'clock. Plaintiff claims that the doctor did not visit her at all after the operation, on the 6th, although she said, "The chart ought to show when he called." She testified that when the doctor did visit her she remarked, "I have a notion to sue you," to which the doctor responded, "For what," and that she said, "'For what you did to my chest' and I showed it to him and he just told the nurse to put a little talcum powder on it and it would be all right. I said: 'You must have burned me with ether or something. I felt something drop on me.' He said, 'I worked fast and furiously and I may have laid a hot pack on your chest."' Defendant denied that he ever made the last statement.

Plaintiff testified that the blister or burn caused her great pain; that it filled with pus and gave out a disagreeable odor; that in healing it left a nasty scar which had not disappeared at the time of the trial; and that the injury still burned and annoyed her and dealt her "all kinds of misery," so that she could not sleep; and that it particularly bothered her when she was warm and when the bedclothing and other articles came in contact with it. She testified that defendant ministered to this injury in his office a couple of times; that he removed the scab with a safety razor and that the injury remained open and drained for two or three months; that defendant wanted her to return to the hospital and offered to cut the scar out and sew it across, but she refused to have that done.

The amended complaint alleges that defendant, in the performance of the operation and in the handling, treatment, and care of plaintiff during and after the operation, did not use due or proper care or skill in the treatment, in that, between the time of the commencement of the administration of the anesthetic and the time when plaintiff regained consciousness after the operation, defendant carelessly, negligently, and unskillfully permitted and caused plaintiff to be severely burned and injured, and that the burn or injury was produced upon plaintiff while she was under the influence of the anesthetic and wholly unconscious and unaware of the burn or injury, until she had been removed from the operating room in the hospital to her private room therein and after she regained consciousness.

Defendant filed a demurrer to the amended complaint. It was overruled and an answer was filed in which the allegations were denied.

In the presentation of the defense, Dr. O'Rourke, Dr. Noonan Dr. Kargican, and the nurses explained in great detail the manner and incidents of the operation. Dr. Kargican in particular made not only a detailed explanation of the incidents of the operation but brought into the courtroom either the articles used at the time, or others of like kind, and in fact endeavored to re-enact and reproduce the scenes...