Woronka v. Sewall

• Citation: 320 Mass. 362,69 N.E.2d 581
• Parties: WORONKA et al. v. SEWALL.
• Decision Date: 04 November 1946
• Court: United States State Supreme Judicial Court of Massachusetts

320 Mass. 362

69 N.E.2d 581

WORONKA et al.

v.SEWALL.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 4, 1946.

Exceptions from Superior Court, Suffolk County; Hammond, Judge.

Action by Mary Woronka and another against Weston Sewall for allegedly negligent medical treatment of named plaintiff and consequential damages. The judge directed a verdict for defendant, and plaintiffs bring exceptions.

Exceptions sustained.

Before FIELD, C. J., and DOLAN, RONAN, WILKINS, and SPALDING, JJ.

S. Cohen and M. W. Titlebaum, both of Boston, for plaintiffs.

J. F. Dunn, Jr., and C. J. Dunn, both of Boston, and J. W. Cussen, of Dorchester, for defendant.

WILKINS, Justice.

This is an action of contract or tort against a physician specializing in obstetrics. The declaration is in three counts. Counts 1 and 2 are respectively in contract and tort, and allege an undertaking by the defendant to care for the plaintiff Mary Woronka (hereinafter called the plaintiff) ‘before, during, and for some time after the birth of her child’ and negligent treatment causing burns on the buttocks which resulted in keloids. Count 3 is by the plaintiff's husband for consequential damages. G.L. (Ter.Ed.) c. 231, § 6A, as inserted by St.1939, c. 372, § 1. The judge directed verdicts for the defendant.

The jury could have found the facts hereinafter set forth. On May 7, 1940, the plaintiff, then pregnant, and her husband consulted the defendant, an obstetrician, who undertook to treat the plaintiff before, during, and for as long after childbirth as she should need care, ‘no matter what resulted.’ He saw her 16 times in the pre-natal period. About 11 p. m. on December 20 the plaintiff, who was in mild labor and three weeks overdue, entered a lying-in hospital in Boston, where the defendant had arranged for her room. The baby, which was her first and a large one, was born about 2:10 a. m. on December 22. The plaintiff had a difficult labor of 35 hours, and delivery was by the use of forceps after the defendant had performed an operation known as an episiotomy. She was in the delivery room on a hospital bed ‘for a good many hours,’ and was moved onto the delivery table when ready for delivery and then given ether anesthesia. About 12 minutes after anesthesia had started, in order to sterilize the field of operation, the defendant applied Scott's solution to the legs, to the perineum, and to an area extending half way from the public bone to the umbilicus. The ingredients of Scott's solution are mercurochrome, distilled water, 95 per cent alcohol, and a chemical known as acetone (a solvent, which has a tendency to dry up). During the delivery, which consumed ‘perhaps an hour and ten minutes,’ the plaintiff, draped with sterile sheets and towels, lay on her back with her legs held by nurses, her buttocks resting on the ‘bed’ where the defendant was operating. ‘She was lying on a rubber sheet at the time of delivery; the rubber sheet was put just under her buttocks. She was lying on a hospital sheet, the rest of her body on a sterile towel between the rubber sheet and her buttocks.’ During the course of delivery he had another doctor as an assistant. The defendant ‘was theoretically in charge of the delivery room at the time of the delivery.’ The nurses were under his directions and orders. Compare Guell v. Tenney, 262 Mass. 54, 55, 56, 159 N.E. 451.

In the afternoon of December 22 the plaintiff who was in her room which was downstairs from the delivery room, told the defendant that her back was sore and burned, and the defendant said that it was natural and it would leave in a few days. There was a similar conversation the following day. On December 24 she told the defendant her back was worse and burning. The defendant made an examination, which disclosed on each buttock a second degree burn covering in each case an area of approximately two by three inches. He then said, ‘My God, what a mess; my God, what happened here * * *. It is a darn shame to have this happen.’ He also said that ‘she had a very hard delivery, and it was a burning shame to get that on top of it, and it was because of negligence when they were upstairs.’ On Christmas day the defendant talked with the plaintiff's husband in her room and at that time said that it was unfortunate; that a thing like that should not have happened and the staff was going to take steps to correct it; that apparently it was from the solution being allowed to stay in the part of the ‘mat’ which was recessed from the pressure; and that ‘the closest he could figure was that the solution was on the rubber mat and exposed her skin for too long a period.’ On January 2 or 3, 1941, the plaintiff told the defendant that the burns were all unncessary. He replied ‘that it was because of negligence while they were upstairs'; that he could not understand how it happened; and that he washed and cleaned her off himself. From the burns there developed keloids, ‘a tumor-like condition which generally originates in a scar.’

The defendant testified: ‘She got these burns while in the delivery room. * * * He thought she got the burns at the time of the delivery.’ In answer to interrogatories the defendant stated that ‘the plaintiff did receive burns on both her buttocks while she was under his care and treatment’; and that there was ‘no negligent acts or omissions on the part of the plaintiff or by others than the defendant which caused the injuries suffered by the plaintiff.’

There was error in the direction of the verdicts. The plaintiff was not required to show the exact cause of her injuries or to exclude all possibility that they resulted without fault on the part of the defendant. It was enough if she showed that the harm which befell her was more likely due to negligence of the defendant than to some other cause for which he was not liable. Rocha v. Alber, 302 Mass. 155, 157, 158, 18 N.E.2d 1018;Ruffin v. Coca Cola Bottling Co., 311 Mass. 514, 516, 42 N.E.2d 259;McCabe v. Boston Consolidated Gas Co., 314 Mass. 493, 496, 50 N.E.2d 640;Gilmore v. Kilbourn, 317 Mass. 358, 363, 58 N.E.2d 143. See Morris v. Weene, 258 Mass. 178, 180, 154 N.E. 860. This is not a case where an inference of lack of proper care by the...