Yates v. Gamble
| Citation | 268 N.W. 670,198 Minn. 7 |
| Decision Date | 24 July 1936 |
| Docket Number | No. 30806.,30806. |
| Parties | YATES v. GAMBLE et al. |
| Court | Supreme Court of Minnesota (US) |
Appeal from District Court, Freeborn County; A. B. Gislason, Judge.
Action by Chrystal J. Yates against J. W. Gamble and another, wherein Sybil Yates, as special administratrix of the estate of Chrystal J. Yates, deceased, was substituted as plaintiff. From an order overruling the plaintiff's motion for a new trial, after a directed verdict for the defendants, the plaintiff appeals.
Affirmed.
Meighen, Knudson & Sturtz, of Albert Lea, for appellant.
Ernest E. Watson and Silas S. Larson, both of Minneapolis, and J. O. Peterson, of Albert Lea, for respondents.
Chrystal J. Yates brought this action to recover damages alleged to have been caused to her by malpractice on the part of defendants J. W. Gamble and Paul Gamble, physicians and surgeons, in performing surgical operations on her body and in treating her in connection therewith. There was a directed verdict for defendants. Chrystal J. Yates died on September 10, 1935, after the trial and pending her motion for a new trial. Thereafter Sybil Yates, as special administratrix of decedent's estate, was substituted as plaintiff. The motion for a new trial was denied, and the appeal is from the order denying that motion. For convenience, we refer hereinafter to Chrystal J. Yates as plaintiff, unless otherwise indicated.
The motion for a new trial was based on what, in substance, constitutes two grounds: First, that the evidence made the issue of malpractice a question of fact for the jury, and the court erred in not submitting that issue to the jury and in directing a verdict; second, that the court erred in a number of rulings, in sustaining objections to questions asked of certain witnesses, and in striking out certain answers to questions.
Plaintiff was a young woman twenty-five years of age at the time of the trial. She was a trained nurse, having taken a three-year training course in the Naeve Hospital at Albert Lea and having become a registered nurse in 1932. She and the defendants were residents of Albert Lea, Minn. Plaintiff had gallstone trouble, the first attack being in 1931, a second in July, 1932, and a third late in December of that year. Defendants had been and were plaintiff's attending physicians during these attacks. X-ray pictures taken in August, 1932, and January, 1933, showed gallstones in the gall bladder as the cause of these attacks. An operation for the removal of the gall bladder was agreed upon and was performed by the defendants at the Naeve Hospital on January 6, 1933. Up to the time of this operation, plaintiff's health, aside from the attacks mentioned and the temporary illnesses caused thereby, was good. During the two attacks prior to December, 1932, plaintiff vomited a number of times and the vomit contained some bile. After the first operation, bile continued to seep out through the drainage tubes inserted in the operative opening, and, after these tubes were removed, bile continued to seep out through the wound and vomiting continued. There was some improvement. Plaintiff returned to her home, but on January 25 became seriously ill and showed symptoms of an obstruction in the bowels. She returned to the hospital. A second operation was performed by defendants on January 26. Numerous adhesions were found, one of which caused a stricture and obstruction in the bowel where it connected with the stomach. The adhesions found were removed. Plaintiff's condition did not greatly improve, and, on February 3, she was taken to the Mayo Clinic in Rochester and placed in St. Mary's Hospital, where she was treated by the doctors of that clinic. There was some improvement and plaintiff returned to her home in Albert Lea on February 23. She continued ailing, with more or less vomiting and nausea, and returned to the hospital in Rochester on April 29. She was there operated on by Dr. Judd of the Mayo Clinic on May 13. She improved after that operation and returned home July 1. There were some blood transfusions at Rochester. There was also an operation for drainage of an abscess in the abdominal wall in June, before she returned home. She made a number of trips to Rochester after July 1, and an operation for drainage of a liver abscess was performed by Dr. Judd on December 27. She continued after that to make occasional trips to Rochester up to March, 1935. She described her condition after July 1, 1933, as "fairly good" with occasional pain, nausea, and vomiting.
Plaintiff's counsel state, at the outset of their brief:
"Appellant's central contention is that in a routine gall bladder operation, wholly without complications, the surgeon, contrary to good surgery and without necessity, opened a bile duct and failed to repair or otherwise care for the opening, resulting in large quantities of bile escaping through the wall of the duct, and being the proximate cause of inflammation, infection, stricture of the common duct, and troubles which wrecked the patient's life."
Plaintiff's theory, briefly stated, as we gather it, appears to be that defendant Paul Gamble, at the first operation, inserted a probe through the wall of the common bile duct and left an opening in that duct through which bile escaped into the abdominal cavity; that he failed to close or repair said opening; that this caused irritation throughout the biliary tract and caused the adhesions found at the second operation; that after the first operation infection from some source developed in the biliary tract and caused the subsequent illness and suffering of the plaintiff.
The evidence relied upon to show that defendant Paul Gamble inserted a probe in the common duct is that of plaintiff and one of her sisters, who testified, in substance, that, some time after plaintiff had made her first trip to Rochester and been there treated, in a conversation between plaintiff and Dr. Paul Gamble at which the sister was present, plaintiff inquired of the doctor whether he thought there was any obstruction in the common duct and he stated that he had taken a probe and probed as far as he could to see if there were any stones or obstruction and that the duct was clear. As the verdict here was directed on motion at the close of plaintiff's evidence, after defendants rested for the purpose of moving for such verdict, there is no evidence on this question on the part of the defendants except that Paul Gamble was called by plaintiff for cross-examination under the statute and testified that he made no such statement; that he did not insert any probe in this duct, but did palpate the duct with his fingers and found no stones or obstructions therein. The testimony of Dr. J. W. Gamble is not in the printed record, except a few questions and answers not relating to this subject. It is stated in the printed record that what is omitted therefrom is corroborative of the testimony of Dr. Paul Gamble. Without searching through the typewritten transcript, we assume he corroborates the testimony of Dr. Paul Gamble that no probe was inserted in the common duct.
This evidence of the plaintiff and her sister, viewed in the light of plaintiff's other testimony as to her symptoms and condition for some years prior to and after the operation of January 6, 1933, and other facts shown, deserve some consideration. Assuming that the statement was made by Dr. Paul Gamble, it does not state when or in what manner the probe was inserted. Two medical experts were called for the plaintiff, Dr. Snell of the Mayo Clinic and Dr. Dakin of St. Joseph's Mercy Hospital of Mason City, Iowa. Dr. Snell was asked as to the effect of applying a steel probe to the common duct so as to traumatize it. His answer was that then you would have an immediate drainage of bile which would persist until it was corrected. But he qualified his answer later by testifying that, as far as his experience went, the trauma was principally that of infection; that it was infective trauma and not mechanical trauma; that anything short of a crushing or tearing trauma he would not count as mechanical trauma because it would have no influence. Dr. Dakin testified in effect that, assuming that Dr. Gamble had palpated the common duct and found no obstruction there, it would not be good surgical practice to insert a probe through the wall of the common duct and probe it, the objection to so doing being that it was unnecessary and would cause damage to the duct and necessitate drainage, and unnecessarily complicate the operation; that he would not expect the opening to close of its own accord immediately. It may be noted that a probe, if used, would be a slender instrument with a diameter about the same as the lead in an ordinary pencil. Irrespective of any medical testimony, we may safely assume, as a matter of common knowledge, that nature would promptly set up a healing process to close the slight wound in the wall of the duct. So Dr. Dakin very properly qualified his answer by saying the opening would not close immediately.
1. Concededly defendants were qualified and experienced physicians and surgeons in good standing and possessed at least the average skill of physicians and surgeons practicing in their community. That does not excuse them if they failed to exercise the degree of skill and care required. A physician and surgeon is not an insurer of a cure or good result of his treatment or operation. He is only required to possess the skill and learning possessed by the average member of his school of the profession in good standing in his locality, and to apply that skill and learning with due care. Other definitions are to the same effect. Clark v. George, 148 Minn. 52, 180 N.W. 1011; Berkholz v. Benepe, 153 Minn. 335, 190 N.W. 800; Nelson v. Dahl, 174 Minn. 574, 219 N.W. 941. The case of Quickstad v. Tavenner, 196 Minn. 125, 264 N.W. 436, is well in point here. It covers the question of the care, skill,...
To continue reading
Request your trial