*1 87á al. et v. SHIFFLETTE
CARR
No. Daily, Welch, and H. Mason R. Appeals John Court United States Oxenburg, Washington, I. D. Gerald C., all of Columbia. District of appellant. 2, 1936. March Decided D. Fitz- E. Shifflette and James John C., ap- gerald, pellees. Washington, both of D. MARTIN, Justice, Before and Chief ROBB, ORSDEL, GRONER, and VAN STEPHENS, Associate Justices. ROBB, Associate Justice. Appeal plain- from a for the Supreme tiff of the District Court malpractice. an action for Subsequent docketing to the below), appellee appeal (plaintiff the then Nichols, Bald- Lucille win, married James J. thereafter, May Mrs. and Septem- suicide. Baldwin committed On petition of the granted the ber administrators of her we estate substi- to be appellees. tuted as alleges (counts The declaration and day shortly 3) prior to the 15th October, physician, Dr. the defendant Carr, prescribed for a and treated ailment, and that trouble or duty of the de- such treatment was proper exercise reasonable and fendant to injuring to avoid and humiliat- care so as plaintiff; yet, notwithstanding that ing the duty, care, did not exercise such the defendant this, “being of, ignorant of the use and then and unskilled in and effect “disregarding machine” and certain sought, re- Smith, quested allowed one Walton P. person untrained the science of medi- surgery and unfamiliar cine or trouble, body condition and tiff,” body plaintiff’s per- to view an thereon; neg- form “did carelessly, recklessly cut, ligently, burn injure plaintiff.” and otherwise Plain- alleged that tiff further carelessly recklessly per- “negligently, allowed the said mitted and Walton P. attempt perform op- and to upon and to see and view the eration private person plaintiff”; “by negligence, reason of carelessness of the defendant recklessness as afore- said, sick, has been rendered shocked, sore, humiliated, distressed * plaintiff gence, aforesaid.” necessary to be stated. tember, and uterus; tion was ably having “a colored up consulted would informed tion kins. Since had had a not treatment. ting a formed she would would who advised tiff had the her the mechanism make supply house New York.” On October yes, if she onto was satisfied could and he was [*] 15th, following, the instrument next Dr. she could ahead Smith, piece of *2 * * The defendant Plaintiff, attempt into termed * * awant cauterizing was introduced to treatment would ailment might clear machine. because promised was not doctor. She Carr, coming from small was advised it. a cauterization. day apparently everything not see new be there from the would carelessness and her that the that the has (Smith) a doctor treatment and she “that examination. machine there and whereby her that this recommended.” She Dr. Carr ghe Saturday have an cauterization before use have have first, to effect a ‘leucorrhea.’ Defendant She tubes and that meat stranger giving cauterizing dance,” been childhood caused she a that she wanted rather have and was (plaintiff) saw his skill and decided on it to than Dr. Carr.” the years machine it. he was She saw she told at up someone because she told one go (Dr. Carr) and showed put filed several discharge.” Defendant operation, a Dr. to practice and The meat had backed discharge professionally plaintiff, to a which (defendant) old, give her her to discharge “Dr. Carr asked her cure second, “she had had what announced Carr’s Plaintiff machine “and that ” trouble.” “Dr. Smith.” He given more defendant’s defendant she did great wherefore, she testified that she dance recklessness, him (Dr. largest surgical Dr. a Dr. growth in the of her trouble her treatments before (plaintiff) naturally explained could not use major opera- “a “to him thought skillful with office, by Dr. Per- gummed up her how to (plaintiff) a because she rather than (Dr. Carr) Smith expense if Carr) Carr, Thereupon pleas, not was cauteriza- did. The had treatment office thorough took out go Plaintiff to do it. was all she negli- prob- night, After Sep- right said give used get- that said that got she in- as blood a lar who had and was advised “that the right, would not do stopped sulted talked with two Carr a defendant tiff waited young o’clock.” Defendant her and (defendant) see “and then told her that she would thing had her to Dr. 29.” (her being months, and ber had Plaintiff “went to the defendant’s officelate ous and home. to urged her before treatment to take a com- doctor plete She vised home and that having When late “looked instrument that Dr. Custis used to She went Dr. Perkins in gave ber cember, 1932, some Custis cauterization at experience, testifying for young quiet packed Dr. next her flow he 15th, hypodermics. finally she ceased.” regular was a physician (Dr. Custis) rest and with expressed and treated Dr. bleeding man and who cleared Dr. advised her to 1931. “When same between seven and treated her Perkins, history of bleeding. there was a Dr. Carr man that had headaches afternoon and told her that some- one of the did her nerves used Dr. Carr’s office. started. that gave to Custis “and at on the to clots and went she went back recommended Custis. That Dr. Custis Custis had cauterized her would go by Dr. Custis day be done and she flow) go any good. exactly she defendant until During refused. Dr. twenty-four her the Dr. Carr’s office they out for to a sanitarium or nurses’ treated her up. following night defendant had could not who * lack of had that time discharged a nurses’ Thereafter, Plaintiff “advised the machines naturally call him. throbbing.” professionally was then the time another * * profuse flowing take patient returned around like the instrument an engagement * * * to Dr. over from and “advised her and advised her try go a plaintiff, plaintiff appetite, “she was eight.” day time she was entirely That she ride thg March, the gave hours.” Dr. until to come and that eat. complete to a and that she two to three home.” of 33 would have came in she Perkins, hypodermic. 10:30 ” Perkins ad- she had the waiting on October her in same Defendant her defendant originally. “when it telephone She with the bleeding- in town packing * Decem- nursing recalled Decem- should [*] coagu- Plain- healed 1933,” morn- regu- years’ nerv- thing con- took * * that [*] rest * De- had Dr.
87C nausea, ages pref headache in back of the tissue. ing constant That it is findings practice neck His and erable and much and nervousness. better medical leucorrhea, try stop at end coagula erosion diagnosis of bleeding were uterus, waste,’ means tion. bleeding That if fol ‘cervical there was some *3 uterus; prolapsed right lowing 15, kid cauterization erosion of October ney, He that charge patient small hemorrhoids. doctor in .three (Dr. Carr) by condition tried cauterized her for the leucorrhea medicants and certain compounds stop off to by ‘cauterizing’ burning bleeding he meant resorting coagulation, following to she was uterus which the area the end of the at infected., approved practice. best most Mrs. That and of course .was irritated bleeding longer Nichols’ usual for little than lasted a patient did bleed cauterization the after the Nothing those much unusual cases. the bleed could not state whether but he * * * * * * fo the cauterization. profuse not. On ing was or llowed His at the time was that there 1, 1933, again office visited his March many were before, cases that did not as found, bleed right a he had said and kidney as many just much and cases that bled as vaginal prolapsed and on the much or more. nothing That he found cyst the size of an almond. wall a about of Mrs. organs walls Nichols’ where position, nor was in same The uterus she had been cauterized that unusual discharge There was no mal as before. or different from that the ordi In no erosion. other from the cervix and nary cauterization. there, That the walls had not words, he anything as burned, injured, scraped or otherwise it. before when he cauterized found * * * ordinarily different happens from what of cau Bleeding follows all cases * * * cauterization. That the cauterization was had ever done. terization that he deep not as as some of them.” In Mrs. Nichols said she was nervous. 1931 again again When he saw her in 1933 she Thereupon counsel an- * ** her said she nervous. nounced his case closed. Counsel for de- complaint with reference to nervousness fendant moved the court to direct a verdict in 1931 was the same in 1933 and 1934 as and she for the defendant. the court declined This history gave the same in 1931that do, jury, but submitted the case to the when he she did 1933. That examined thqt with the result a verdict was rendered nothing in Nichols in he found Mrs. 1933 plaintiff, for the and the' brought case was otherwise, vagina that her or indicated here. any organ area had been in that way or It is established law that it is the du injured by damaged or reason of a ty pro when practicing his by done in 1932 Dr. Carr. cauterization fession to ordinary exercise the care and * * * De That he treated her from profession of that locality, skill ain similar January be cember due consideration to modern ad discharged her as cured. That if fore vancement and learning. There is an im January discharge he did not her until 18 plied agreement injurious that no conse prac bleeding the likelihood is that she was quences will result from proper want of up tically until that time.” skill, care, diligence; or but one who seeks Custis, witness, only Dr. other testi against physician, to recover alleging lack brought fied Dr. Mrs. Carr Nichols skill or negligence, of has burden of his officefor an examination and treatment proving Cayton the averments. English, v. of bleeding “because some from the cervix. 224, App.D.C. 745; F.(2d) 57 23 Hazen v. At the time he found she had a small Mullen, 3, App.D.C. 394; 59 32 F.(2d) bleeding amount of from the uterine cervix Borden, App.D.C. 327; Wilson v. 61 62 F. which followed an on the cervix (2d) Judge (later Taft Chief Justice high frequency with a current. States) of the United Ewing v. Goode placed The instrument 442, is cervix of (C.C.) 443, F. said: “Before the 78 uterus, is, opening recover, of uter plaintiff can she must show af us, frequency current, high with a first, and firmative that evidence— t then goes i turned around and as it and, second, was unskillful or negligent; around a little wire on the side of it cuts that his want of skill or injury care caused shaving from the mucous membrane of If either element is lack the cervical high ing proof, canal. It cuts with a her presented she has no case frequency coagulation current. That is a jury.” consideration of the Gen goes by; of the-tissue might erally it speaking, as it the failure of an burn, course, called but it dam alone presumption creates no of lack of
877 disregarded du- claimed that defendant circum care; is a nevertheless or skill plaintiff, consideration, ty negligently “and and care- when some entitled to stance permitted, sought requested lessly tending evidence other with considered perform White, man name of v. care. Crist lack skill prove operation on the in an 795; Grubb v. F.(2d) App.D.C. 66 unskillful manner, re- negligent and careless F.(2d) 511. Groover, App.D.C. great suffered sult for a law that a motion also settled It is injury, every pain and suffered humilia- accepts as ma true verdict directed occasioned to ex- tion therefrom evidence, the reason fact in terial large money as a there- ours.) pend sums of result therefrom. deducible able inferences (Italics for medical attention.” App.D.C. Groover, 67 F. Grubb said: *4 charge, Later on the court in there cited. (2d) and cases you is whether thing “The determine first of light in the the When considered any negligent- acted the defendant in ly wise law, we applicable of foregoing statement carelessly performance of her or erred in clear that the court below think it you find to the If she was directed refusing motion for a defendant’s reckless, is negligent, careless or not verdict. you your consideration. If find the end of The discloses that Mrs. Nich- evidence recklessly, did she did -care- that what she defendant’s treatment at the time of ols you lessly negligently, are de- then suffering from a chronic was or 'the was whether not termine condition, previously for which she genital defendant, injured by that act of the or also discloses that the had been treated. It plain- the condition the whether not or of cauterizing with which the de- machine operation was no this after different tiff than treatment was administered was fendant’s after, n it or or whether zms before Perkins, approved according type. Dr. of (Italics ours.) worse.” testimony, “treated her from De- to his Roberts, Appellees DeMay v. cite 2, 1931, 18, 1932,” January cember 146, Am.Rep. Mich. 9 N.W. substantially administered the same against deceit an action which was in substantially for the same condi- treatment unprofessional per physician who took an or as the treatment tion ailment adminis- case with him to attend a confinement son plaintiff by According defendant. tered emergency requiring no there was when many Dr. Custis “there were cases that did person’s presence. Thai nonmedical the many bleed as not much cases that deceit, case, upon on and not being based. just as much or more.” The doctor bled also therefore, is, point. not in injury, tortious in nothing “that he found the stated having been tried and present case organs of walls Mrs. Nichols’ where she theory in jury the of to the on submitted jury (by defendant) had been cauterized resulting from defendant’s unusual the was ordi- permit be plaintiff cannot negligence, “the nary cauterization.” change to review to another on ted this he, The averment as to Smith is that in required was not the defendant the of and at the instance and re- Mullens, Ry. Virginian meet below.” defendant, quest negligently of the used the L. 46 S.Ct. 271 U.S. cauterizing plain- machine on the of 915. Ed. and in “did negligently, tiff lessly, such use care- like or sur- If a case cut, recklessly burn and other- chargeable negligence, to be geon is injure plaintiff.” wise the the evi-' While courageous enough prac- would be “few supports allegation deuce that Smith art, they would have to healing for tice acting agent was as the of the nearly liability all the financial assume no ” there is evidence that in the use of the Ewing v. is heir to.’ Goode that flesh ‘ills guilty negligence machine was of 442. F. (C.C.) 78 lacking in skill. reversed, is and the In his charge jury, to the which we remanded. cause assume satisfactory must to the remanded. Reversed tiff, the court at the you outset said: “As throughout have been told the: trial and STEPHENS, (con- Associate Justice argument, this damages, is suit for curring) . personal injuries alleged to have been re- for the reason in the result plaintiff through ceived I concur the negli- plaintiff, the by the objection that, of gence defendant.” it 8T8 jury may apparently submitted case allowed. But the reason theory negligence causing rule upon against of recovery allowing for mental upon the the- physical injury anguish unless accompanies physical in anguish. is, jury mental ory negligence causing large, danger of false claims, pointed out in the solely And as because a case would rest physical in- court, testimony was no there evidence that mental say, consequences of jury, suffering experienced, that is to with substan layman performed by tially no disproof means of of this different, according to no the case were defendant. Kester v. Western Union Tel. testimony, from where a similar (C.C.) my those Co. the operation F. 603. But view this prac- performed by licensed reason for the respect rule present fails is, Negligence one, of medicine. case such as the titioner course, where the evi injury. dence not actionable without of mental suffering comes not from testimony descriptive suffering of such as view, however, my In by way such but of inference from the fact evidence, of an actionable guilty, under exposure of the plaintiff’s person to the which, jury, wrong if submitted to view, examination lay aof awarding warranted a verdict would have man, fact, stated, of which as above recognized anguish. mental As damages for *5 ample proof. apparently There is but court, duty of the case, May Roberts, one De 160, 46 Mich. that reasonable physician is to exercise of a Am.Rep. 9 N.W. recog experience learning, degree of skill nizing as actionable treatment similar to ordinarily by others of possessed which is that to which plaintiff subjected communities. in similar profession his here. exposed There a woman during obviously includes a furnish This childbirth to the and view of a lay, professional, not care. lay male friend physician’s of the whom proved that her complained and the latter * * * stormy night had on a “fetched examination exposed to the view and carry along help my things,” performed an layman, and to was not informed knowledge person layman, all without this was not such layman Apparently a doctor. rather from the plaintiff’s part language that he was there was no di physician. of that court this than a While was held actionable on theory in her testi statement of tort causing rect for deceit mental anguish, I think mony concerning mental a anguish. reasonably inference might jury draw from pertinent It to comment further that exposed the fact physical the fact that no injury came to view, operation in examination plaintiff in this probably case was that she did suffer above described manner mental happy accident rather than the result of especially in view of anguish, any proper professional care, exercise of told the defend “she fact that testified lay person question for while in the stranger not want did ant she case, manager the district surgical who not a doctor”—this in treatments house, supply might acquired have through operation. of the doubt advance practice laboratory otherwise, ain for recognition as an legal actionable about demonstrations, purposes of sales skill the manner of treatment wrong of above particular use of the instrument so rule that in arises suits described actually touching searing far as its tis- sounding negligence (or tort for indeed concerned, person such sues is could hard- recovery contract) cannot in actions be ly, general lack of training medical accom suffering had mental unless it capable experience, meeting Express physical injury. unex- panies Southern Byers, varied pectedly emergency conditions or Co. v. U.S. S.Ct. Moreover, consequences. As evidence in under the L.Ed. case there injury confessedly was no herself no skill in the use —al plain though inferential!y, there was instrument and invasion there- may person fore, be said to no skill dealing
tiff’s follow conse- —it plaintiff’s recovery anguish quences no mental use. its