Goode v. Lothrop

266 Mass. 518 | Mass. | 1929

Wait, J.

The plaintiff sues to recover for malpractice in an operation for removing a hump from her nose and shortening the nose. The only negligence asserted is the failure of the operating surgeon to remove, at the time of the operation, a splinter of bone which was discharged weeks after-wards from an incision made to relieve a discharge of pus coming from the wound.

There was evidence that, in the natural course of the performance of such an operation, splinters of bone would be created which might remain in the wound owing to the inability of the operating surgeon to come upon them. There was further evidence that, after the operation, by a natural process of necrosis splinters of bone might become separated from bones cut into or affected by the operation. There was testimony, contradicted by the defendant, that, when the particle of bone came out from the nose, he stated that that was the cause of the trouble which had been going on since the operation; that he had suspected it; that it was a particle which he had failed to remove from the wound. Nothing in this statement admits that such failure to discover and remove the bone was negligent. Testimony from other physicians, and from the defendant himself, was to the effect that it was impossible to obtain all particles which might be made in the course of the operation; although every effort was made to remove all, no one could be sure that he had done so. This testimony, if believed, established lack of negligence. If disbelieved, the ease of the plaintiff was left without any direct evidence of negligence, or any evidence of fact from which negligence could justly be inferred.

The case differs from those in which there has been some specific act which could be found to be negligence on the part of a physician or surgeon in introducing some septic matter into the body of a patient, as in Traverse v. Wing, 256 Mass. 320, and Toy v. Mackintosh, 222 Mass. 430. The burden was on the plaintiff to show acts of negligence, or acts from which negligence could properly be inferred. This she has failed to do. The judge was right in ordering the entry of a verdict for the defendant. In accord with the terms of the report, judgment is to enter for the defendant.

So ordered.