Williams v. Tarter

• Decision Date: 23 May 1941
• Citation: 286 Ky. 717,151 S.W.2d 783
• Parties: WILLIAMS v. TARTER.
• Court: Kentucky Court of Appeals

151 S.W.2d 783

286 Ky. 717

WILLIAMS v. TARTER.

Court of Appeals of Kentucky

May 23, 1941

Appeal from Circuit Court, Russell County; J. C. Carter, Judge.

Action by Stanley Williams, administrator, etc., against Dr. J. B Tarter and Dr. Popplewell for death of plaintiff's intestate allegedly caused by negligence of defendants in treating her while in attendance upon her in parturition. The petition was dismissed as to Dr. Popplewell. From a judgment for defendant Dr. J. B. Tarter, based on a directed verdict the plaintiff appeals.

Affirmed.

O. B Bertram, of Campbellsville, for appellant.

Curtis & Curtis, of Louisville, for appellee.

MORRIS Commissioner.

Appellant, plaintiff below, as administrator sued appellee and Dr. Popplewell, charging that in attendance upon his wife in parturition they so negligently and improperly treated her as to cause her death.

Issue was raised by an answer, which denied the charges. The petition was dismissed as to Dr. Popplewell. After proof was introduced the court, upon appellee's motion, directed a verdict in his favor, and from judgment dismissing petition appeal is prosecuted. Grounds urged for reversal, substantially stated, are that the court erred: (1) In sustaining objections to competent and relevant evidence offered by plaintiff; (2) in overruling plaintiff's objections to incompetent evidence brought forward by defendant; and (3) in directing a verdict for defendant.

By lay proof it was shown that prior to August 16, 1938, expecting his wife to be confined, appellant had arranged for Dr. Tarter to attend her. In the early morning of the 16th, Dr. Tarter, who lived five miles distant, was called and arrived at the home about 7:30. Parties who were present informed the doctor that she had suffered convulsions prior to his arrival, and the first thing he did was to give her a "shot of medicine from a glass container," and afterwards administered a second hypodermic. These witnesses say that Dr. Tarter examined her heart and took her blood pressure, and said he "found no trouble there."

It was apparent to all that the condition was serious, and Dr. Tarter suggested that Dr. Popplewell be called, and upon arrival he was advised of previous conditions. The husband suggested that if they couldn't save her he would take her to the hospital. It developed that the nearest hospital was thirty miles distant. Witnesses say that the doctors said they "could take care of her here," and they proceeded, at times administering chloroform and other drugs. The child, with considerable difficulty, by use of forceps, was finally delivered, and witnesses say that the doctors left "in a hurry and said she was getting along all right." The proof shows that the two doctors were with the patient for more than two and a half hours, and both, according to plaintiff's witnesses, remained at the home for about forty-five minutes after delivery. The child lived, but the mother died shortly after departure of the doctors.

Relatives of Mrs. Williams, who were present at the time, together with some neighbors, testified that when Dr. Tarter had made his examination, and learned of the convulsions he expressed doubt that she could be saved. This witness, as did the husband, testified as to times, procedure and administration of drugs, but were of the opinion that the attending physicians left the home too soon after delivery. They say that Mrs. Williams was having hemorrhages, and that the doctor should have known this fact. The doctor, when departing, left Mrs. Williams in charge of relatives and her mother, with directions as to such attention as he thought necessary.

The instructions were carried out, but evidently, as we read the testimony, Mrs. Robinson came to the conclusion that Mrs. Williams was about to go into convulsions. Dr. Tarter had informed those present that he had to visit another patient, whom they knew, and how he could be reached, and suggested that "if there was anything they didn't understand to call him. "When he was called he came back hurriedly, but the patient was dead, as the doctor says, "because of the shock," principally due to eclampsia, a toxic poisoning of the system, which all the doctors, including Dr. McLendon, agreed caused convulsions.

The foregoing fairly outlines the evidence of lay witnesses who were present at the home, except to add that Mr. Williams said that when the doctors left, Dr. Tarter told him that "she was getting along all right." Dr. Tarter says that he did stay some time after delivery upon Mr. Williams' suggestion, but declined to remain and have dinner because he was due to visit another patient.

The question as to whether there was actionable negligence, in malpractice cases, depends upon the testimony of those learned in the profession of medicine, and in order to establish the case appellant called Dr. McLendon, who had a wide experience in parturition cases. It is altogether unnecessary for us to go into details of Dr. McLendon's testimony, but giving it the closest consideration it may be summed up by saying, under heavy pressure, he would not undertake to say that the use of chloroform or thytuitary, in the manner, and as frequently as deposed by lay witnesses, was such as not ordinarily used by physicians under like circumstances.

In this respect and as to the procedure adopted in delivering the baby, this witness uniformly answered the questions by the assertions: "This would depend upon the symptoms of the individual case, and I would say the doctor in the case would know what quantities to give." As to how the medicines should be administered, with what frequency, Dr. McLendon said: "The doctor in attendance would be the only one to know. It depends entirely upon what stage of labor the patient is in." The several questions answered by the doctor, upon which appellant bases his proof of negligence, may be summarized thus: "From your general practice and from your general knowledge of practice in this county, I'll ask you if it would be regarded as ordinary skill and an ordinary way to practice medicine in this county, if called upon to attend a mother in childbirth, and you found she was suffering from spasms and was unconscious, and you began to administer medicine that would eventually produce unconsciousness, and continue to use that medicine; for instance chloroform, which would tend to and produce more unconsciousness and make the patient unconscious entirely, and in that condition after the birth of the child you would walk off and leave the mother in that condition, is that considered ordinary skill. "The doctor answered "No." Again: "In labor cases when you attend a patient and they were unconscious when you went to see them, and you used medicine to put them to sleep in order to relieve suffering and aid in childbirth, is it customary to leave a patient in that condition when they are suffering and flooding to an extent that it was dangerous and liable to result in death in any case?" The doctor answered: "I don't know the general practice; all I can say is that it is not my mode of practice."

Without giving this hypothetical question too close scrutiny, it may be said it does not state all the facts, nor undertake to state fairly all the facts. In the first place the doctor did not at "once walk off." The proof of appellant is that both doctors remained for more than forty-five minutes, and they say they remained one and a half hours after delivering the baby. It is true that one lay witness says that Mrs. Williams was "having hemorrhages bad when he left," but it is apparent from this witness' statement that the reason Dr. Tarter was called the last time was because she thought the patient about to have another convulsion. It does not appear whether or not this occurred. She says that she did not know whether or not Dr. Tarter undertook to stop the hemorrhages. He left and said she was "all right."

As to the unconsciousness, or its production by the use of medicine, which no doubt is ordinarily given for that purpose in such cases, this same witness who was left with others in charge, was positive that Mrs. Williams had had three convulsions between six or seven o'clock, and the time Dr. Tarter arrived, and she said Mrs. Williams didn't know anything "from the first convulsion until she died." This witness did say the bleeding "was bad," but there was nothing in the testimony to indicate that the flooding was dangerous, unusual or to such an extent that death was liable to ensue because of this condition. The question did not suggest in any manner the expressed opinion of the doctor, and as testified to by all appellant's witnesses, the doctor, as had his assistant, found her in such condition that it was very doubtful if the mother could be saved, due to the trouble which was causing the frequent convulsions.

However we need not pursue this discussion further, since it was nowhere shown that anything that was done, or left undone, was likely to cause Mrs. William's death, and Dr....