Walker v. Distler

• Decision Date: 02 March 1956
• Docket Number: No. 8294,8294
• Parties: John WALKER and Greta Walker, Husband and Wife, Plaintiffs-Respondents, v. Edward K. DISTLER, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 452

296 P.2d 452

78 Idaho 38

John WALKER and Greta Walker, Husband and Wife, Plaintiffs-Respondents, v. Edward K. DISTLER, Defendant-Appellant.

No. 8294.

Supreme Court of Idaho.

March 2, 1956.

As Modified on Denial of Rehearing May 7, 1956.

J. F. Martin and C. Ben Martin, Boise, for appellant.

Wm. F. Galloway, J. W. Galloway, R. C. Galloway and Ted M. Echols, Boise, for respondents.

TAYLOR, Chief Justice.

Plaintiffs (respondents) brought this action to recover damages for personal injuries suffered by the plaintiff, Greta Walker, during childbirth, while she was under the control and care of the defendant (appellant), a physician and surgeon.

In their complaint plaintiffs' cause is stated in three counts. The first is based on negligence of the defendant and seeks to invoke the doctrine of res ipsa loquitur. The second charges that 'defendant wrongfully, negligently, carelessly and in an unskillful manner administered spinal anesthesia to said plaintiff'. Specific acts of negligence and want of skill are alleged, among which are that the anesthetic chosen by the defendant was not a proper one for use in connection with childbirth, and for use in her case, in view of her symptoms and general condition, and that the anesthetic was negligently and unskillfully administered. Specific injuries alleged to have resulted therefrom include partial and increasing paralysis, and foot drop, of the right leg; total paralysis with atrophy of the thigh and calf, and foot drop, of the left leg; and impairment of control of bladder and bowels. The third count charges assault and battery.

The administration of the drug and the delivery occurred July 27, 1951. Plaintiff at the time was 19 years of age and had suffered a miscarriage the year before.

In his answer defendant alleges that the plaintiff, Greta Walker, was not at the time in good physical condition and had not been for sometime prior thereto, notwithstanding his efforts to prepare her for a normal delivery; that he used his best skill, judgment and care in her treatment and delivery, all in accord with good, sound medical practice; that during the delivery and the after-care of plaintiff he used not only his best judgment, but consultations with and advice of well-known physicians and surgeons, and that the disabilities suffered by plaintiff were unpredictable and unavoidable and within the realm of hazards incident to childbirth.

Upon trial, after plaintiff had rested, the court denied non-suit on the first count and granted non-suit on the second and third counts.

At the close of the evidence, after both parties had rested, the court granted motion for directed verdict, and entered judgment for the defendant. Thereafter plaintiffs moved for a new trial, which was granted. The grounds specified in the notice of motion for a new trial are: (1) accident or surprise; (2) newly discovered evidence; (3) that the order directing a verdict is against the law in that there was sufficient evidence to support a verdict for plaintiffs; (4) errors in law occurring at the trial: (a) the granting of motion for non-suit as to plaintiffs' third count; (b) sustaining objections to plaintiffs' examination of the witness Litzinger, head nurse, concerning hospital charts in other cases where spinal anesthesia was employed.

In its order the court granted the motion upon all of the grounds assigned except that assigning error in law in granting non-suit as to plaintiffs' third count. Defendant brought this appeal from the order. No cross-appeal was taken by plaintiffs. Hence, the non-suit as to the third count is not before us.

It was developed upon the trial that in July, 1950, while one William J. Kelly was her doctor, the plaintiff, Greta Walker, suffered a miscarriage, and that the delivery of July 27, 1951, was her first. The defendant, testifying in his own behalf, interposed defensively that he had been advised by Dr. Kelly, who had referred the patient to defendant, that she exhibited symptoms of pre-eclampsia at the time of the miscarriage and that such symptoms might develop during the course of the current pregnancy; that he saw her frequently between the time she came to him in April and the date of delivery; that during that time she was overweight and gaining too rapidly in spite of his efforts to keep her weight down; that he did an urinalysis upon each visit and, except for obesity, with a concurrent increase of blood pressure, and some anemia, he observed no other symptoms of pre-eclampsia until July 19th, when she complained of occasional headaches, and some ankle swelling appeared; that an urinalysis done at his office on the afternoon of July 26th showed 2-plus albumin; that he then became suspicious of eclampsia and sent her to the hospital. That evening he induced labor and eighteen hours later, shortly after noon on the 27th, he administered a saddle block, or spinal anesthesia, in the spinal canal between the fourth and fifth lumbar vertebrae; opened the cervix by incision and delivered the baby with forceps.

Defendant further testified that toxemia, pre-eclampsia or eclampsia, is a disease caused by toxic products released from the placenta during pregnancy and carried by the blood to the different parts of the body. As the baby grows, more of such products are pushed out, resulting in sickness of the mother, and specifically 'you will notice that by the appearance of headaches, dizziness, and albumin in the urine, and when you come to albumin and headaches you think of eclampsia. * * * As soon as the mother begins to complain of headaches and dizziness or spills albumin in the urine, you immediately pick up your ears and begin to suspicion something is happening,' and if the toxic condition develops to the point of eclampsia, convulsions, and death will follow unless the pregnancy is terminated and the uterus cleaned out immediately.

'Q. All right. When you put her in the hospital on the afternoon of July 26th, 1951, what did her urinalysis show? A. She had a 2-plus albumin.

'Q. What did that mean to you, Doctor? A. That means that she was going into eclamptic failure.

'Q. How long does it take them to go into an eclamptic condition when they start like that? A. Oh, that can happen very suddenly.

'Q. What do you mean by suddenly? A. Well, a woman can be perfectly--she can be apparently normal at noon and be--be spilling albumin by two o'clock. Whenever the produce--whenever the substance within the blood stream gets high enough they go into eclampsia.

'Q. How long after this eclampsia sets in is some accident going to happen? A. Usually within twenty-four hours. You have to deliver a baby within twenty-four hours.'

There was other medical evidence to the effect that the albuminuria is a sine quo non of eclampsia. The doctor's defense was that in her condition the plaintiff could not have endured a general anesthetic, such as ether. During the eighteen hours of labor preceding the saddle block, the cervix did not dilate rapidly enough; that the patient became tired, and the fetal heart tones increased from a normal rate of 140 to 160; that he was therefore confronted with an emergency in which it was necessary and advisable to use a spinal anesthetic because it could be administered and become effective in a matter of minutes. He described caudal anesthesia as an anesthetic given in the sacral canal, which extends down below the lumbar vertebrae and contains the nerve fibers from the spinal cord, but not within the spinal canal. That in such anesthesia the spinal canal is not punctured, that the anesthetic solution is deposited in the cauda equinal area and that it is used 'to anesthesize just those areas around the birth area, the birth canal, the opening of the birth canal and it is a very safe and long-acting anesthesia. It has one major difficulty, and the reason that it is not used is it requires constant supervision and it takes a long time. Caudal analgesia is never used when there is any time element. If you have to deliver a baby quickly you don't give a caudal because the baby will be born before the caudal is given or takes effect. You can give a spinal in one-tenth the time that it takes to set up and institute a caudal anesthesia.' On direct examination he had testified that in the case of a caudal anesthesia it would be necessary to wait ten to twenty minutes before it took effect. 'Caudal anesthetics therefore take considerably more quantity and time than a spinal. You can give a spinal in one-fifth the time you can give a caudal. Caudal would have been fine if I would have had time to deliver this baby, two hours to deliver this baby.'

Defendant's testimony indicates that during the eighteen hours labor he was hoping for complete dilation and a non-surgical delivery. At the time he was examining her immediately before the saddle block was given, he said, 'she didn't have any convulsions.' After the anesthetic and while preparing for delivery he first observed signs of convulsion and he delivered the baby between convulsions. This would support the doctor's defense that he was confronted with an emergency justifying the spinal anesthesia. But also inherent in his testimony is the inference that by commencing two hours earlier he could have employed the comparatively safe caudal anesthesia with the probability of thus avoiding the injury sustained by plaintiff.

Plaintiff produced in support of her case the hospital chart containing the history of her symptoms, diagnosis and treatment from the time of admission to discharge. One entry under date of the 26th, at 5:30 p. m., is 'Urine to lab.', understood to mean that a sample of her urine was sent to the hospital laboratory for analysis. The laboratory report contained in the exhibit is dated the 27th and records, 'Albumin neg.' In rebuttal to defendant's testimony of the presence of 2-plus albumin on the 26th, plaintiff called the director of the hospital laboratory...