*1 360 yеar immediately preceding port, his discre- matter within having injury.” 10(a) report filed could rea- been Since section
tion. A
not
sonably
fairly
case,
applied
not
failure
be
the instant
to file
having
excused,
Deputy
been
it follows that
occasion for the
Commission-
10(c).
(cid:127)employer
er
to section
is not liable for
additional
resort
Deputy
and that
care
It is
settled
such as
well
that doubts
ruling.
correct
so
Commissioner was
thought
be
to exist here should be
favorably
employee.
resolved
Affirmed.
Bradshaw,
Robinson v.
92
216,
435,
206
346
F.2d
certiorari denied
FAHY,
Judge (concurring in
899,
400;
U.S.
74
L.Ed.
98
dissenting
part,
part).
Donovan, 95
Travelers Ins. Co. v.
U.S.
agree
with the
the court
App.D.C. 331,
ceding injury appellant worked about days during 196 more than 43 weeks. days possible employment total
The five-day 261. week were Because employment, appellant’s
of the nature of jobs, was on outside construction Administratrix, Estate of QUICK, Creola fifty per less than of his somewhat cent Appellant Quick, Deceased, Lawrence working five-day time consisted v. weeks, consisting balance three Appellee. THURSTON, Roger G. days, day days, four two even one No. 15738. a week. Appeals Court of States United ap- decisive factor think is that Circuit. of Columbia District throughout year pellant worked throughout employment which continued Argued 1961. Feb. year; employment is, 20, 1961. April Decided Deputy not seasonal. The Commissioner days found that worked were when work was unavailable or perfoxuned due to inclement weather. Deputy Commissioner also found employment “continuous.” It seems me that cir- above supported by position cumstances the
weight authority,1 albeit state court statutes, under
decisions state is that compensation
appellant’s should have computed 10(a) under section Act2 the basis that he em- during “substantially
ployed the whole Longshoremen’s Suр Workers’ E.g., and Harbor Stines Farmers Lumber & v. (1927), Act, Compensation 1424 Co., 415; ply Stat. 100 N.W.2d Iowa (1958), Co., 1951, 901-950 33 U.S.O.A. §§ U.S.C. Travelers Ins. Jarrell Romig Champi 901-950. §§ La. So.2d Forge Co., & on Blower 315 Pa. A. 293. *2 Washington, Benjamin Rossner, Mr. F. Dedmon,
C.,D. whom O. with Mr. Jesse brief, Jr., Washington, C., was on the D. appellant. for Edgerton, Fahy, Circuit Bazelon and Judges, dissented. Joseph Washington, Barse, Mr. D. J. C., Welch, with whom Messrs. James A. Welch, Harry Welch,
H. Mason J. Arthur Jr., Murphy, V. Butler and Walter J. Washington, C., brief, D. were on for appellee. Judge, Before Wilbur K. Chief Miller, and Edgerton, Prettyman, Bazelon, Fahy, Washington, Bastían, Danaher, Judges, sitting and Burger, Circuit en banc. BURGER, Judge, Circuit whom with MILLER, Judge, WILBUR Chief K. and PRETTYMAN, WASHINGTON, DAN- BASTIAN, Judges, AHER and join. wrongful In this action for death District Court directed a verdict for plaintiff’s defendant at the close of case. evening On June de- cedent, Quick, visited appellee, Thurston, obtain relief from re- urine tention; long he had suffered from dia- betes and urethral stricture. The treat- ment consisted of the insertion of certain into instruments the urethra to relieve stricture administration safeguard penicillin against aas infec- during tion. drained presence treatment showed the of infec- urinary tion in tract, еxpected was to be in view of the abnor- urinary mal retention. The re- decedent after turned home the treatment which was administered between 10:00 and 11:00 P.M. night During patient developed high chills, temperature began hem-
orrhaging. His wife called the doctor’s
again
house at 4:00 A.M.
6:00
at
A.M.,
on both
occasions the doctor’s
to awaken him. A
wife refused
call
responding
negligent
he doctor
in not
doctor
9:00
A.M. reached
calls,
court
which to the earlier
and the trial
prescribed additional antibiotics
correctly
the de-
directed a
promptly
verdict
to decedent’s
delivered
Rodgers v.
Quick
fendant
called
issue. Cf.
Meanwhile,
home.
Mrs.
Lawson, supra. Moreover,
such
physician. This
even
*3
a
relative who also was
introduced, plaintiff’s
had
evidence
physician
Thurston’s
Dr.
countermanded
doc-
evidence failed
that the
to establish
antibiotics
directive for additional
delay
answering
any
tor’s
con-
hos-
instead
pitalization.
immediate
recommended
Quick.
tributed
the
In-
death of Mr.
hospital
urethral
At the
the
deed, plaintiff’s
expert stated
by
of
medical
insertion
the
stricture was relieved
opinion
express
sep-
that he could not
an
specimens showed
instruments and
speedy
whether
of
condi-
pro-
treatment
(blood-poisoning) due to
ticemia
generally
bring
days
tion
an in-
organism.
tended to
such
the
later
teus
Eleven
fection under control.
In
of
this state
patient died.
jury
evidence
the
the
have de-
not
pretrial proceedings
the action
termined
medical
whether the absence of
wrongful
four elements
death framed
during
night
the
contributed
negligence:
(1) Failure
determine
of
death,
to the
for it could
deter-
not be
in a condition
whether the decedent was
mined whether earlier treatment would
treatment;
undergo
(2) Failure to ad-
any
had
have
beneficial effect. More-
treatment;
prior to
minister antibiotics
appellee
prescribed
over after
the
proper post-treat-
(3)
provide
Failure to
arranged
for additional antibiotics
care;
(4)
instru-
ment
Use of unsterile
judgment
there intervened the
and deci-
ments.
sion of another doctor who countermand-
suggest
Appellant
the
does
appellee’s direction
ed
to administer the
sufficient to
record
evidence
war-
contains
record,
antibiotics. On this
the direction
allegation
first
of
rant submission
aof
verdict for the defendant on the
respect
jury.
With
to the
compelled
claim of abandonment was
allegation,
there was
evi-
the second
proof
aspects
failure of
thе
on both
of
proper
practice
medical
re-
dence that
liability negligence and causation.
—
quired
of antibiotics
administration
be-
immediately after,
fore,
than
the
negligence,
rather
The final
of
upon
claim
Moreover,
manipulation.
plaintiff
heavily,
there
urethral
relies
which
is the use
prior
appellant alleges
no evidence
administra-
was
instruments
which
prevented
Specifically,
the infection.
appellant
tion would
unsterile.
primar-
appeal
Appеllant’s
testimony
rests
cites the
of her medical wit-
alleged
ily
abandonment,
upon
manipulation
of un-
use
“the
ness that
urethral
did
loquitur.
instruments,
ipsa
septicemia”
and res
sterile
pro-
cause this
and that the
organism “could
teus
have been intro-
malpractice
action for
In an
time,
duced at that
and from the course
the
to establish
is on
burden
the
likely
events,
of
self,
was.” Taken
it-
did
“that
defendant
exercise
the
that
degree
analysis,
testimony
without
ordinarily
skill
care and
exer
given
impression
the
profеssion in
his own
the
cised
Maganzini expressed
Rodgers
Lawson,
localities.”
similar
organism
the
was
fact intro-
282, 170 F.2d
1948, 83
by unsterile
duced
instruments. But the
Prosser,
(1955).
and further
context
full
statements
any
plaintiff failed to introduce
the
Here
demonstrate that
the doctor
such was
sup
of care in
the standard
meaning. Appellant’s
witness
allegations of abandonment.
port of
plain that the
manipu-
“urethral
makes
offered to
show that
No
referred to was
he
lation”
treatment-
care in
com
standard
m.edical
explained
given
history
he
require
response
munity
earlier
as well
stricture
as the
urethral
cul-
jury
Thus
left
doctor.
developed
specimens
taken
to determine whether the
tures
means
without
hospital
hospital,
when decedent reached
after
entered
the decedent
breaking
open
urin-
stricture
infection
indicated
chronic
explained
simplest
urethral
Furthermore,
canal
ary
“is the
he
tract.
procedure.”
Thus,
usual
that the most
source
total
organism
in the
absence of
evidencе from
“a local source
urethra,
urinary
bladder,
could have
prostate,
concluded that
tract,
something
other
instruments were
In
unsterile or that
nature.”
of that
negligent
itself,
performing
man-
doctor
not the
words the treatment
inherently
administration,
he
should not have
ner
its
diffusing
performed
aggravating
capable
the treatment.1
ex-
pre-existing
He then
infection.
*4
suggests
Plaintiff
that
doc
the
the
plained
testified that
that when he
ipsa loquitur may
trine of res
fill this
at
proteus
“introduced
was
gap
doctrine,
in the evidence. That
of
manipulation,”
time
the urethral
the
of
course, is a common sense rule which al
injury
only
done
he
that “the
meant
negligence
lows an inference of
where
narrowed, by
passage
urethra
is
the
that
complained
ordinarily
the
of
occurrence
very suscepti-
instrument,
it
an
makes
of
happen
neg
would not
in the absence of
also,
develop,
ble for
and
infection
ligence.
Safeway Stores,
See
Inc.
by
opening up certain blood ves-
virtue of
West,
U.S.App.D.C. 99,
organisms
sels,
place
these
allows a
for
denied, 1950,
certiorari
339 U.S.
readily.” Thus
the blood stream
to enter
1365; Prosser,
testimony
proteus or-
the
was that
(1955).
42§
ganism
blood
into the
was introduced
basis,
manipulation,
There
no
in the record or
the time
stream at
of
experience,
brought
body
to warrant an infer-
common
at
that
into the
it was
spread
that infection —or the
specifically
ence
He
testified that
that
time.
only
saying
this treatment
if
fection —follows
instru-
he was not
that unsterile
negligence.
testimоny
organisms
proteus
there
introduced the
ments
expert,
Maganzini,
system.
appellant’s
Quick’s
Dr.
dis-
into
Mr.
equal possibility
that
was an
there
unequivocal
point.
closes
on this
negli-
that
treatment —as to which
testimony
most favorable
At best
merely
germs
gence is
allowed
shown—
pos-
appellant was that there were two
already present in decedent’s lower urin-
infec-
as to source of
theories
sible
pass
ary
into
tract
the blood stream.
: unsterile instruments
the chron-
tion
long
The record shows deсedent had
suf-
already present
infection
ic
pylonephritis
from chronic
fered
or in-
urinary
Obviously, the
could
tract.
kidney.
Dr.
fection
Thurston tes-
guess
that
former
allowed
not be
that the
drained from
tified
deced-
appellant’s own
the source when
was
which was the usu-
ent
express
opin-
expert could not
medical
condition,
to relieve his
al
showed
hand,
effect. On the other
to that
ion
kidney infection which was to
ex-
be
spread
the infection
that
it be assumed
urinary
pected
in view of
abnоrmal
urinary tract,
find-
in the
a source
Thus, undisputed
retention.
medical tes-
only
negligence
predi-
ing
be
negligence
timony
us that
shows
was not
testimony
expert
upon
that
cated
only potential source of
infection but
im-
used
Thurston was
procedure
Dr.
Appellant’s
simply
expert
one
several.
symptoms
of the
of chron-
proper in view
this.
confirmed
in turn
testimony
No such
of-
was
infection.
ic
great variety
Maganzini
to the
Indeed,
Due
of in
Dr.
testified
fered.
complications which, despite
and
employed
fections
treatment
similar
that
sterile,
his instruments
that
conclusion
reach our
inde
we
1. While
necessary,
pendent
Thur
carefully performed.
ston,
he
called
note
when
we
appellant
for
he testified
a witness
judgment
skill,
fol The
precautions
sometimes
of the District Court
all
treat
correct and
accepted
medical
is affirmed.
standard
low
be
reject
ment,
the notion
courts
Affirmed.
a treatment
follows
infection
cause
Judge,
made.
whom
be
EDGERTON,
is to
Circuit
inference
(dissent-
joins
Judge,
Belt,
FAHY,
34 Cal.2d
Moore v.
1939, 302
Spellman,
ing).
P.2d
Tallon
think
33. We
19 N.E.2d
Mass.
in di-
erred
Court
the District
think
Moreover,
not
it should
rule sound.
recting
the defendant
verdict
op
preceded the
that here an infection
ed
plaintiff’s case.
the close
necessity in
operation
eration and
4, 1957, appellee treated
On June
suggestion
Any
infected area.
vaded the
Treat-
of urine.
for retention
deceased
in
was a new
infection
of instruments
insertion
included
ment
must
one which
fection
therefore
drug
June
On
the urethra.
into
and a
factors is
been caused
external
According
patient
to the
died.
16 the
totally
support
record.
in the
without
certificate,
was caused
death
death
Only recently
approved
rul
this court
lung
multiple
due to
abscesses
ing
judge
the trial
the doctrine
septicemia.
an infection of
This is
*5
ipsa loquitur
apply
of res
does not
blood.
fairly comparable
pre
situation
to that
day
5,
after the
June
On
by
Rodis,
sented
this record. Johnston v.
Alto
patient
to Mount
admitted
1958,
U.S.App.D.C. 209,
102
367
Smith,
App.D.C.
Hohenthal
enees;
evidence
In
needed is
and all that is
say
cites,
that
this court
men can
which
from
reasonable
operation
there
an
but
that
infected
on
it more
whole
per-
cause
the defendant
not the man whо
with the
associated
”
* * * 2 Un
formed it.
not.
than that
doubtedly, operations have sometimes
unknown,
procedures
When sterile
negligence on
caused infections without
operations
infections often resulted from
example, a
For
part
operator.
of the
performed in accordance with standards
may
properly qualified
nurse
and trusted
accepted.
then
probably
one
But
be careless. But
Thurston
legal
contend,
making
in
unless
a
any
only person
appears
who
to hаve
argument,
result
that
infections often
thing
operation
this
do
to
with the
operations
performed in accordance
loquitur
ipsa,
“res
‘means
case. And
accepted. Rejection
with standards now
warrant
the facts of the occurrence
ipsa
present
res
in the
circumstances
they
negligence, not
inference of
to me an
seems
anachronism.3
they
inference;
fur
compel such an
If
plaintiff,
a
found for the
negli
nish
gence
circumstantial
say
would be “no
answer
may bе
of it
where direct evidence
jury’s
speculation
verdict
involved
weighed,
lacking,
to be
is evidence
conjecture. Whenever facts
in dis-
are
necessarily
accepted
suffi
not
to be
pute or the evidence is such that fair-
cient;
they make a
may
minded men
draw different
infer-
they
jury,
decided
not that
ences,
speculation
measure of
”
* * *.’
Jesion
forestall
the verdict
conjecture
required
part
Co.,
U.S.
owski v. Boston
R.
& Maine
duty
dispute
those whose
it is to settle the
452, 457,
67 S.Ct.
by choosing what
seеms
them to be the
Supreme
in the
no case
found
I
most reasonable inference.” Lavender v.
many eases
court,
not
Court or
Kurn,
645, 653,
327 U.S.
rejecting
accepting or
elsewhere, either
L.Ed. 916.
opera-
regarding
ipsa
principle
res
Judge
BAZELON,
(dissenting
the cause
to be
claimed
tion
separately).
court
of the
fection.
agree
Edgerton’s
Judge
analysis
with
“Only recently this
says:
present case
testimony.
having
mind
And
ruling
trial
approved
court
loqui-
we must
favor-
view the record most
ipsa
res
judge
the doctrine
ably
plaintiff,
pro-
fairly
think it
not
does
apply
tur
situation
does
directing
provident
vide
basis
rec-
presented
comparable to that
verdict
favor of the defendant at the
cites Johnston
then
The court
ord.”
plaintiff’s
close
case. But
this does
F.2d
Rodis, 102
possibility
foreclose the
that such a basis
does
situation
Johnston
917. The
*8
may appear
puts
after defendant
presented
comparable to that
seem to me
Capital
Co.,
case. Cf. Loketch v.
Transit
no
That case involved
rеcord.
248 F.2d
Johnston made
fection.
609, 611,
Peigh
citing
v. Baltimore &
O.
infection.
she had suffered
claim
Co.,
U.S.App.D.C. 198, 202,
R.
only
that an
shock
claim was
electric
Her
391, 396,