Walker Hosp. v. Pulley

• Decision Date: 26 May 1920
• Docket Number: No. 10303.,10303.
• Citation: 127 N.E. 559,74 Ind.App. 659
• Court: Indiana Appellate Court
• Parties: WALKER HOSPITAL v. PULLEY.

74 Ind.App. 659

127 N.E. 559

WALKER HOSPITAL

v.PULLEY.

No. 10303.

Appellate Court of Indiana, Division No. 2.

May 26, 1920.

Appeal from Circuit Court, Gibson County; Simon L. Vandeveer, Judge.

Action by Francis E. Pulley against the Walker Hospital. Judgment for plaintiff, and defendant appeals. Affirmed.Albert J. Veneman, William C. Welborn, James F. Walker, and Henry B. Walker, all of Evansville, for appellant.

Elmer Q. Lockyear and Philip W. Frey, both of Evansville, for appellee.

DAUSMAN, J.

Appellee instituted this action to recover damages for malpractice. It is averred in the complaint that appellant is a corporation maintaining its place of business at the city of Evansville; that its business is to furnish for hire medical and surgical aid to the afflicted and for that purpose has in its employ a number of physicians, surgeons, and nurses; that by its agents and servants it performed a surgical operation on the person of appellee; that in the course of the operation a deep incision was made in her left leg; that in the subsequent treatment and care of the wound caused by the incision gauze was placed therein; that the gauze should have been removed before the wound was allowed to heal superficially; that appellant negligently permitted the gauze to remain in the wound, and allowed the wound to heal over and inclose the gauze in the flesh and around the bone; that the gauze was negligently permitted to rot and decay in the flesh at the bone; that the negligent failure to remove the gauze from the wound resulted in blood poisoning and fever, thereby causing appellee to become sick and sore, to suffer physical pain and mental anguish, and to become permanently injured and crippled.

Answer in denial. Verdict and judgment for $2,100. The only error assigned is the action of the court in overruling the motion for a new trial.

[1] 1. Under separate headings counsel for appellant urge two propositions: (1) That the verdict is not sustained by sufficient evidence; and (2) that the verdict is contrary to law, because there is no evidence whatever tending to prove certain ultimate facts which are essential to a recovery. These two propositions will be considered together, since on appeal they present but one question. Cincinnati, etc., v. Madden, 134 Ind. 462, 34 N. E. 227;Deal v. State, 140 Ind. 354, 39 N. E. 930;Elkhart Paper Co. v. Fulkerson, 36 Ind. App. 219, 75 N. E. 283.

The following facts are not disputed:

Mrs. Pulley is a resident of Harrisburg, Ill. On July 12, 1915, in the Walker Hospital at Evansville, Ind., she submitted to an operation for neorosis of the femur. The operation was performed by Dr. Welborn and his assistants. On August 1, she left the hospital and returned to her home. When she left the hospital Dr. Welborn transmitted a letter to Dr. Parish, her local physician at Harrisburg, in which he stated:

“Your patient, Mrs. Pulley, has done exceedingly well. She walks around on crutches, and the wound is about closed. She never has the severe pain and is getting less nervous and seems to be stronger in every respect. I think though, she ought to have a building-up tonic for some time.

You might have to redress the wound a few times; it is just merely a sinus and ought to be closed within the week. I hope she will soon be completely recovered.”

When she arrived home Dr. Parish dressed the wound. The first time he dressed it there was a slight discharge; but the second time, the wound had entirely closed. Then trouble developed. Her limb became greatly swollen from hip to ankle, inclusive. She had some fever, and suffered much pain. In the night of August 8, Dr. Blackard was called in consultation with Dr. Parish. She then complained of pain in the thigh, ankle, and pelvis. The wound was closed, but was tender. In about a week thereafter the wound reopened of its own accord. The wound discharged pus for a time, and later a yellow serum. It was a serious discharge. She suffered pain continuously, and was very nervous. She insisted that the doctors at the hospital had left a piece of gauze in the sinus; and, on August 24, because of her insistence, Drs. Blackard and Parish probed for gauze. At that time a dressing forceps was used, which proved to be too large for the opening of the wound, and could not be inserted far enough to make a satisfactory test. Dr. Blackard promised her that the next time he came he would bring a more suitable instrument and would try again. On the next day he used a smaller instrument, and succeeded in drawing out of the sinus a piece of gauze one-half inch in width and about 15 inches in length. From that time the patient improved; but she continued to complain of pain in the ankle and pelvis. Dr. Blackard saw her every day from August 15 to September 9, but not so frequently thereafter. Later she went to Lake View Hospital, Chicago.

After a careful consideration of its brief we are unable to determine with certainty whether or not appellant is contending that there is no evidence tending to prove that the failure to remove the gauze from the sinus constitutes negligence. As to that point, therefore, it is sufficient to say that there is an abundance of evidence tending to sustain the conclusion of the jury as expressed by their verdict.

Appellant's first distinct contention is that there is no competent evidence tending to prove that the presence of the gauze in the sinus, for the length of time and under the conditions disclosed by the evidence, resulted in any injury to the patient. In other words, the contention is that the causal relation, if any, between the negligence and the pathological conditions of the patient, which developed after she returned to her home, can be proved only by the testimony of experts; and that there is no expert testimony on that subject. Counsel earnestly insist that whether the presence of the gauze in the sinus, which was permitted to heal superficially and inclose the gauze in the flesh for a period of at least 30 days, was the cause of the unfortunate conditions which followed and of the suffering endured by the patient is a question which can be answered only by men skilled in medical science.

[2] The questions ordinarily involved in malpractice cases, such as whether a surgical operation was skillfully performed or whether the care and attention following the operation was proper, and the like, are questions of science; and necessarily the evidence from which those questions are to be determined must come from physicians and surgeons. The general rule is that where negligence is predicated on lack of skill or attention the court and jury must depend on expert evidence. Longfellow v. Vernon, 57 Ind. App. 611, 105 N. E. 178;Ewing v. Goode, (C....