47 Neb. 727 | Neb. | 1896
On tbe trial of tbis cause in tbe district court for Madison county judgment was entered in favor of tbe defendants therein upon a verdict rendered in accordance with tbe peremptory instruction of tbe court, and which it is sought to reverse by means of tbis proceeding.
According to tbe allegations of tbe petition below tbe plaintiff therein employed tbe defendants, who are practicing physicians and surgeons, to treat bis (plaintiff’s) wife for an ailment pronounced by said defendants to’ be an ovarian tumor; that acting upon tbe advice of tbe defendants be accompanied bis said wife from bis home in Madison county to tbe city of Omaha, where, after an examination of her person, they (defendants) advised an operation for tbe removal of said supposed tumor; that relying upon tbe knowledge and skill of defendants, and believing that they bad made a careful and proper examination of tbe person of bis wife, and believing such ■ operation to be necessary in order to save her life, be entered
One proposition clearly established by the record is that the defendants were mistaken respecting the cause of Mrs. Griswold’s affliction, which, according to their diagnosis, was an ovarian tumor, but which was, as alleged, during the operation mentioned discovered to be a fibroid tumor of the uterus. The evidence bearing directly upon that .subject was given by Dr. Sprague, who, by invitation of defendants, witnessed the operation, and who testified, in substance, that no tumor was removed from the person of the patient; also, by Mrs. Brown, proprietress of the hospital in the city of Omaha to which Mrs. Griswold had been taken for the purpose of the operation, who testified to a conversation with Dr. Foote shortly thereafter, in which the latter remarked that the only tumors discovered during the operation were immovable fibroid tumors of the uterus, and in which conversation he- requested the witness to make no statement concerning the subject to Mrs. Griswold’s friends. It is. shown that Dr. Hutchinson made a super
Q. Is there any case except in which the tumor*732 has attained such a size where the life of the patient demands its immediate removal, in which it can be said that the sounding of the uterus might be omitted from the diagnosis of the case and still an attempt be made to perform an operation?
A. No, I think there would be nothing to justify an operation in the case except something that would threaten the life of the patient. * * * A complete and thorough examination of the case where an abdominal tumor is suspected would be by several methods; first, by palpation, which simply means the use of the hands over the abdomen; a feeling of the parts by careful manipulation of the hands over the abdomen, and percussion or tapping of the parts with the fingers externally, or with some instrument to get the sounds elicited by percussion; an examination of the parts that can be reached through the vagina; by measurement of the abdomen as to the breadth and height of the mass; an examination with the vaginal speculum; and in many other cases, and in all case of doubt where pregnancy is absent, the use of the uterine sound. * * *
Q. Are the methods of examination you have suggested necessary and indispensable to a careful and proper examination of the patient where pregnancy does not exist and the presence of a tumor is suspected?
A. Yes, sir; of course where there is a prospect of an operation, it always demands a more careful examination if possible than a man would make simply for the purpose of trying to tell the patient in a general way what the matter is. The very fact that a man is going to make an operation increases his responsibility in diagnosing the case,*733 and lie had better make a mistake where he is not going to operate than where he’is.
Dr. Somers, another witness, testified that the surgeon should be able,-by means of conjoined manipulation, i. e., a digital exploration of the vagina with one hand and the manipulation of the abdomen with the other to determine “to a tolerable certainty” the size and location of the tumor, and whether it is liquid or solid; that if connected with the uterus it is pretty certain to be solid, and if connected with the ovaries it is pretty certain to be a cyst.
It is not pretended that there was in this instance any suspicion of pregnancy, and no objection existed on that ground to the exploration of the uterus in determining the location and character of the tumorous growth. Nor can it on the record before us be contended that this case is within the other exception mentioned by Dr. Crummer, viz., where the condition of the patient is so critical as to require heroic treatment, and where an operation is justifiable as a last resort without the precautionary sounding of the uterus. The .testimony of the medical witnesses tends therefore directly to prove the wrong alleged, viz., negligence in the examination of the plaintiff’s wife and the consequent unfortunate result thereof. We agree with counsel for defendants that physicians and surgeons are not required to exercise the utmost degree of care or to possess the highest attainable skill in their profession. They do, however, by virtue of the relation assumed by them toward patients, impliedly engage that they possess ordinary skill and that they will in the course of their employment exercise such necessary and proper care and
There being competent proof upon the vital issue of the case and tending to sustain the cause of action charged against one of the defendants, a question was presented for submission to the jury, and the direction in favor of both defendants at the conclusion of the plaintiff’s evidence was error calling for a reversal of the judgment so far at least as it applies to the defendant Dr. Foote. It remains to be determined whether the court erred in directing a verdict in favor of Dr: Hutchinson. Upon that question the conclusion reached from an examination of the record is that the engagement and responsibility of the last named defendant terminated with the employment of Dr. Foote. When first consulted upon the subject, he advised the plaintiff to consult some physician who was a specialist in that line, saying that he did not consider himself qualified to perform the required operation. To the question “Did Dr. Hutchinson say who yon had better go to?” the plaintiff answered, “I don’t think he advised any one very strong. The idea was to get the best doctor.” He testified further that
Reversed.