*1 107 retain Rertha claim or circumstances, cannot appellant im- reason death it for the her made lifetime payment Ellsworth’s a perma- for her whether she was become possible to determine probation period, nent Home at end of the inmate of the than case more sound in better reasoned the one principle are Therefore, here- contrary. to the based on the conclusions holding decisions, in such and on tofore announced what is said held that the err in rendering we hold trial court did the judgment has Home appealed. it, note, we be Lest charged overlooking pause we here to we Miltner, Old Home regard Peoples v. Kan. 89 P. 2d relied each of the parties support respective claims regarding the propriety judgment, clearly distinguishable and hence of precedent no value as a controlling issues involved case bar.
Contentions advanced by appellant connection with the over- its ruling of demurrer to appellee’s evidence and the overruling its motion for a new trial are same as those con- heretofore sidered, discussed determined. For reason further dis- cussion the propriety of rulings neither is nor necessary required. judgment affirmed. 40,451
No. Laymond L. Appellant, D., v. Harold L. M. Goheen, Graber, Hospital a Corporation, Appellees. Nursing, Grace and School of
(309 636) P. 2d *2 Opinion filed April 6, 1957. Wichita, argued cause, Morris, Bailey C. H. F. the and and Robert Wichita, Kiser, Jr., with him Willard both of were on the briefs for the J.
appellant. White, argued Roy Eugene Hutchinson, cause, C. A. Davis and both Hodge, Reynolds, and Frank Robert Y. and H. S. Newlin all of Hutchin- Jones son, appellees. were with them on the briefs for court The of the was delivered opinion This action by was an a surviving husband to recover Price, J.: wife, for the death wrongful of his to have resulted and negligence malpractice of defendant physician and hospital. is from the order of the appeal trial court sustaining de- fendants’ demurrers to separate plaintiff’s evidence. childbirth, died the petition
Plaintiff’s wife charged de- following with the acts of negligence fendant physician and mal- practiсe: arriving was late hospital
That he permitting her in the labor room immediately placed to be without taking the nec- her for emotionally prepare labor and essary steps that delivery; nurses to hospital complete allowed the take charge he of her ex- personally present; times he was that during the cept he failed to her as soon labor examine started in personally order to de- an ab- give failed to membranes of the the status termine examination; her to be placed he permitted and rectal dominal alone most be left delivery prematurely room he and examination time; observation intervening by proper known, presentation; fetal knew, abnormal or should have and failed make an diagnosis that he failed and refused to accurate to use X determine cause of ray methods and appropriate labor; during refused abnormal and that he failed and prolonged approved sup- all and abnormal administer prolonged labor to measures, portive diet, rest, as adеquate medical therapy medication; that perform failed operation he Caesarean ,of relied upon presentation transverse instruments pressure by nurses, two causing rupture thus hemorrhage, and that he nurses, allowed who unli- practice censed to medicine and surgery, perform the services he was duty-bound to perform.
The defendant hospital was mal- charged negligence and practice in that it to undertook render services to her its through nurses and employees which are be, and should customarily, per- formed only by that the physicians; nurses and to failed employees call defendant physician or a hospital staff doctor her when condi- tion services; required such that when was imminent the delivery hospital failed to furnish an intern or other con- physician be in stant attendance until arrived; defendant that physician notwith- labor, prolonged standing evidence of breech birth and other conditions, the hospital was late in calling defendant notifying physician; that the hospital, its through nurses and employees, administered sedаtives and other medications without full knowl- limitations, edge thereof; dangers reactions that it failed report doctor, defendant adequately physician, or some other the true condition of the that it failed patient; at all times material out, fulfill carry perform good and approved care hospital and that all practice, of acts and omissions on the part of both defendants were contrary to and in violation of the standards of medical services rendered properly by physicians and hosрitals in the and that of community, all acts of negligence malpractice, concert, and in individually operated together and constituted the proximate direct cause of death. summarized, the evidence
Highly established the following: defendant, Graber, Dr. is a practicing physician Hutchin- is located in hospital Defendant son in obstetrics. specializing Goheen, wife, Norma plaintiff’s after Hutchinson. Several months was for treatment. She Dr. became she went to Graber pregnant, had her doctor Dr. Graber been mother three children and and in pregnancy, her last During each of her former pregnancies. related, resulted, as hereafter her connection with which death unusual, and all signs anything pointed there no were symptoms in the Early normal results. morn- a normal childbirth with toward indicating discharge Goheen had a Mrs. ing February labor, and called Dr. Graber commencement imminence of once, hospital to defendant at go He directed her by telephone. a minutes she did. He arrived at the few after which she yet that she in labor did and examination of her showed was his a. This was at about 5:45 m. anticipated. but that labor was early with her condition or wrong There to indicate nothing anything was than that other normal. Later anything would medication, at directed some 2:00 o’clock doctor morning personal made examination. There that afternoon he another he definite labor directed further medication. being signs no commenced, a few contractions and at m. 3:30 Shortly p. afterwards ruptured normally. or water Thereafter bag membranes increased to and medications dis- proper stage contractions were At doctor again 10:45 made night personal continued. At and directed medication. 2:00 o’clock examination the next nurses, who, "meantime, in the had obstetrical been morning taking regular care Mrs. Goheen course their professional .of duties, doctor that her progress nearly complete. advised later, few minutes after He arrived which the fetus plasma oxygen delivered. Blood administered .was Goheen, she died at 3:22 a. m. Mrs. but *4 aby recognized An was autopsy performеd experienced and this examination disclosed that Mrs. pathologist Goheen s death hemorrhage a due to a rupture occurred as result of the uterus evidence further disclosed The that the delivery. after upper part uterus, out as the thinning instead fetus developed, of the as is case, thickness, was more than twice the usual ordinarily while uterus, of the where part occurred, smaller rupture the lower and thin, and that extremely developed condition had was latent type abnormality, unusual very there ordinarily and a of such condition warning prior no delivery. would part played by respect With attending
111 nurses, the evidence disclosed that there nothing was unusual out of the ordinary connection with Mrs. pregnancy Gohéen’s leading up her actual and that delivery, during period she was in she was under the routine and care regular nurses of many years experience, and that ministered to they her in the usual and manner in the her ordinary light of known condi- tion. this During period she was the usual given customary examinations, rectal nurses assisted doctor in the actual dеlivery, was customary.
Medical testimony was the effect that at her state of pregnancy a vaginal examination would be and that improper only rectal be, were, examinations should given Mrs. Goheen. Plaintiff testified that he was in room a part time and that he observed what the nurses were with doing respect mak- examinations, ing and he expressed the that his wife opinion was a examination. given vaginal He testified also concerning pressure by the nurses to his applied wife’s abdomen. There also was testi- mony several members of Mrs. Goheen’s family concerning conversation had with Dr. Graber day following her death in which he to have that perhaps said her life could have been saved if a Caesarean operation had been performed. stated,
As at the conclusion of plaintiff’s court, evidence the trial after somewhat at commenting length on the evidence and ques- involved, tions sustained demurrers Dr. Graber and defendant hospital. of that is the ruling question
The correctness
presented for review.
against
first consider the cаse
We
physician.
defendant
respecting
liability
Questions
physicians in malpractice
been
occasions,
have
before this court on numerous
cases
commenc
Wilcox,
v.
law, possesses is that he that reasonable of learning and degree ordinarily possessed by profession members of his skill and of his *5 or similar practices where he community in the school of medicine in medical regard the advance communities, due for having such and time, and will use that he science the learning surgical care dili- ordinary with patient of skill in the his treatment founded on considerations elementary and rule is is This gence. health lives the protect to of public policy, purpose its being rеsults, good a of guarantor is A not physician the public. results, from bad nor if bad re- merely civil does arise liability than his treatment. In case of sults cause other are due to some pursued is be a phy- two or courses to doubt to which of more as questions sician best On of a medi- judgment. bound to his is use proper is the treatment fol- cal or scientific nature to what to be as qualified those who are only experts lowed in a case particular witnesses, being reason that lay are to the courts permitted testify, is what the jurors permitted say proper are not treatment for a surgical operation performed. a how should be specific disease or judicial a This not to be considered as determination that rule is profession monopoly the medical a members of the have on com- sense, only mon limited to those clearly is matters within the If, case, medical in a bad domain of science. the results are given anyone, and if pronounced apparent so as to be what was done or not in the treatment of a so obvious patient done and within persons common everyday knowledge generally, the such facts testified to than may by persons physicians. other An illustra- tion such as where a physician of this would be fails take steps bone, a a surgeon or where up sews wound set broken leav- in the In or substance the foreign body. article ing some Rernsden case, court set aside the verdict of trial supra, jury trial on new that expert defendant a testimony ground granted not sufficient sustain the verdict. introduced was There metal remain in the allowed to throat of a patient disk had been for a hours, thirty-six of over period lower court reversing fact, matters, held related it was together person be discerned any ordinary could such as intelligence, together testimony, with the medical lay and that testimony intro- duced, sustain the verdict. sufficient to just stated rules general
Applying evidence in this case, The evidence we find? consisted do what almost entirely who conducted pathologist testimony post-mortem nurses. attending and of All questions examination within clearly the realm in issue were science, matters medical *6 has already than more and, the evidence summarizing without done, iota of medical evidence there is one been it said not bemay or of guilty negligence that defendant was physician to indicate medical de- care to the in or diagnosing malpractice rendering fact, evidence estab- affirmatively ceased. In all the medical of to proper practices conform physician that did lished defendant circumstances. in of all attendant usages light the effect of the fact that testified to point plaintiff Some is made his rather than a rectal' that in his wife was a opinion given vaginal such statement on his was place, part examination. In first speculative, secondly, type of examination purely specific was a medical concerning made matter of evidence which he was not qualified testify.
Another of the statement point alleged is made defendant the next physician day perhaps plain- effect that fife of might tiff’s wife been saved had a Caesarean been operation have made, such performed. Assuming that remark was constitutes it that, no evidence under the existing circumstances conditions death, her and of which prior the doctor and nurses in the exer- aware, skill and diligence cise of were well was it negligence not a malpractice perform Caesarean operation.
Another nonuse of point concerning X-ray is equipment. made A answer that all of the short contention is intro- this evidence duced X-ray reason for the use of any established no еquipment because symptoms time all of the in- delivery, patient preceding and, dicated every respect, related, in as heretofore normalcy of rupture entirely the uterus due to a latent was abnormal condi- organ. All tion of of the evidence was to the effect that noth- could ing have been done was not done after such fact rupture, the occurrence of the first symptom being abnormal and latent condition unusually existing. concerned, defendant is physician Insofar matters as concerning this case were matters solely acts within professional his and no evidence was introduced, realm medical science of expert a otherwise, out case of prima^-facie to make or negligence Negligence is never part. presumed malpractice his must —it established, established by competent and until evidence, a perform. function Plaintiff’s has no evidence not did jury only in fact refuted it. negligence establish demurrer of —it sustained. properly was physician defendant said also to the applies of what has been Much of liability defendant In hospital. the recent of Marks v. St. case Francis & Hospital School Nursing, 179 Kan. 294 P. 2d general rules with respect to the liability for in the hospital negligence discussed, care of patient and it said that a private must exercise toward a patient reasonable care his known condition may require, the of care degree being propor tion to his known physical and mental ailments. Textbook authori ties cited in the opinion are to the effect that the extent and charаcter of the care that a hospital owes its patients depends upon case, particular circumstances each and that the measure duty of a care, to exercise that degree skill and diligence used by hospitals generally community required express implied contract of the undertaking, that a hospital is liable for want care whether ordinary from incompetency of a *7 nurse or failure in of a duty fully qualified nurse. See also Noel v. Foundation, Menninger 180 23 Kan. 2 and (Syl. P. 2d 3), 299 38. stated, As heretofore until up the aсtual time of delivery there was absolutely nothing about Mrs. Goheen’s condition to indicate there was unusual or anything case, abnormal about her or that it differed from of any the thousands of obstetrical cases handled by the qualified and experienced nurses in words, attendance. In other insofar as Mrs. Goheen’s physical condition was known to the hos- nurses, pital it just case, another obstetrical and there was no evidence to indicate or establish that she was not ministered to and cared for in the customary routine mаnner as her known con- dition required demanded. Medical evidence was to the effect there was nothing abnormal about a transverse delivery, and that very frequently external pressure is applied to the abdomen at the time of delivery. Plaintiff heavily relies on the in holding Memorial Hos- Garfield Marshall,
pital v.
As has been said respect with to defendant physician, negligence established, is never presumed must be and until established by —it
115 by Tested to perform. has no function jury evidence competent liability hospital’s to а respect heretofore mentioned rules did not only evidence plaintiff’s malpractice, for negligence of de- demurrer fact it. The refuted negligence establish —it sustained. was properly fendant hospital trial court is affirmed. The judgment this type rule actions general (dissenting): Robb, J. than lay rather placed expert is that reliance has be strong However, those things can laymen testify regarding testimony. see, and or conversa they experts say, hear they actually what Johnson, 174 v. presence experts. (Bernsden tiоns had in 237, 230, 236, 2d 255 P. 1033.) Kan. to the ruling
I dissent from court as majority opinion I believe the oft-stated on the demurrers because we are bound 23, Foundation, in Noel Menninger rule reiterated v. 180 Kan. 299 Suttle, 38, in Koch approval P. 2d was cited with v. Kan. 2d P. 123. In the Noel case we said: testing sufficiency “In evidence when attacked demurrer all true, weighed any be it will not as evidence will considered contradictory parts discrepancies or therein between direct or cross-examina- tion, every among witnesses, may favorable inference which reason- given any ably be drawn therefrom will be to such there evidence. If case, (Syl. 1.) evidence which sustains the the demurrer will he overruled." (My emphasis.) For reference to evidence of will be clarity, witnesses made sequence as to time instead in the order evi- in which such dence in the record. appeared tihe
What does record show? deceased Appellant, whose wife *8 weighed 220 testified that when he his wife to the pounds, took noticed hospital, bloody she and she discharge hysterical. was charts, part were of the permanent records of were identified by superintendent, and its were by kept placed same nurses who were on the stand appellant and by testified in regard who entries made thereon. The first nurse called had the charts signed as a witness but had not made all the entries. The charts contained entries stating “Show bloody,” “Small . . . 5:00 blood-tinged discharge p. amt. m. 2 to every 4 min- m., utes,” p. hard, “. . . at 6:00 one every minute duration . . .” The discharge. 50 sec. dark charts indicated green Doctor m., at 10:45 made a patient p. Graber saw rectal examination the charts comment that on they, entered “Must consider рresentation breech still seems to be the head.” The although charts by showed no other just visit the doctor until 2:10 a. m. prior the birth. The doctor had caused an to made entry the patient’s chart at the time of her admission to the 6, 1954, 5:45 a. m. on February “Patient not in labor stating, but passed has some show of blood at home is admitted an- ticipation early labor.”
The charts showed a number of rectal examinations by the nurses with conclusions arrived at them as by to location placement of the head. baby’s Certain medications were administered to by these same patient nurses and while the evidence is somewhat it contradictory, was fairly established that some of these medica-
tions were to induce labor pains uterine contractions and after started, these had then another medication was administered the nurses to slow down labor reduce pain.
The testimony interspersed explanations of the charts the nurses included information not fully reflected in the charts alone to the effect that the left patient was to the nurses totally who mаde the rectal therefrom, examinations and made conclusions who medications, administered including drugs and narcotics that could excess, be dangerous if given and then the doctor to telephoned advise him of the and to directions him. These progress get nurses testified knew they how make these examinations and how to administer the drugs, but they admitted were not they sure of deductions, their findings, conclusions; the doctors were persons qualified to do this. There were no internes or staff at this physicians hospital. X-ray equipment avаilable in the The nurses hospital. further testified that sterile examina- vaginal tions were sometimes used in the event a breech birth was expected. m.,
At 2:10 nurses, about a. in the opinion of the the buttocks of the and the baby appeared doctor was called. It was a still birth.
We return to appellant’s testimony relating to what he saw and heard in the labor and room. record (The does not show whether more than one room was used.) When the medications administered, broke, patient’s water him, and she told nurses, in the presence thаt was as close as she ever came to She told the dying. nurses she was ready to have her if baby they down, just would let her bear but turned her they on her side to told stop pains her they would tell her when it was ready to bear down. This was the patient’s fourth child. The same had doctor delivered the three previous children. *9 out but that the further testified nurses
Appellant out the he would have to go left alone to extent that he had been the would not use bring bedpan. They a nurse to get the hall His wife so she it on the floor. the table used on bedpan and had to leave the room. much blood that he became sick lost so his the told that appellant In conversation doctor subsequent he big baby; possibly too a woman to have a that wife was little op- a Caesarean by saved both the mother and baby could have forward backward. Three other but look and not eration doctors Cae- heard this the statement the doctor witnesses regarding three had on the operation. sarean doctor relied fact that The births had not mother had been successful. He previous this any trouble with this one. anticipated Dickelmann, an Lorin E. a pathologist
Dr. who performed mother, usually on deceased that autopsy the testified X-ray done at a time to determine previous the but position baby would not necessarily doctors have to resort thereto. He found uterus it was thin at top was unusual thick at the In this de- reply question bottom. to a to whether could be X-ray, tected Doctor Dickelmann any stated that gynecologist his best try will to make if can. ab- he more The diagnosis birth, normal the the possibility of tearing greatеr something getting would through since the difficult. be more If the condi- examine, tion could be a doctor recognized, would have to ingo something and do about it. He did not vaginal recommend a until a doctor was ready to ahead He examination and deliver. go noted there areas had were some contusions chest of the child. outset, my opinion stated at is that the
As correct rule testimony, to this we have com- applied consistently because thereto, ourselves quoted mitted is the from the previously one cаse, supra. Noel ' is I am convinced is result that not only there some evi- there much more than necessary dence but that both require record, From be overruled. through demurrers assumed duties the nurses its nurses were admittedly out, doctor, carry had who qualified qualifications the condition of diagnose patient, realize his left every- to the nurses. In this we are case thing up considering proof *10 demurrers appellant Appellees’ testimony thereto. an different but do not may present entirely picture, we have In my before us now. both demurrers picture opinion, should have been overruled.
Wertz, concurs in J., dissenting opinion. foregoing 40,452
No. Packing al., Appellees, W. et v. C. K. Company, Crisler Inc., John Appellant. Corporation, (309 703) 2dP. Opinion April filed
6, 1957. Lillard, Jr., Salina, argued M. Yordy, Thomas cause, K. Jason Salina, appellant. was on the briefs for the Cranmer, Payne argued Ratner, Russell Widhita, cause, H. Louise Mattox, Payne Ratner, Jr., Stinson, Jr., H. Ratner, B. Dale W. William L. Cliff Fry, Wayne Borst, Murphy, A. Bernard V. D. Allison D. Gerald Clifford Lasswell, Wichita, all of him appellees. were with on brief for the opinion of the court was delivered by Wertz, an This is appeal the order of the trial court J.: overruling demurrer of defendant (appellant) petition of plain tiffs on (appellees) ground that several causes action were joined. improperly
The defendant is meat packing company incorporated under plaintiffs laws this state. The (appellees), forty-five num- , ber, employed by defendant and were members of Meat Amalgamated Cutters and Butcher Workmen of North Amer- ica, 354, Local Union No. hereinafter referred to as “Union.” The petition Union, in behalf of its June