42 App. D.C. 146 | D.C. | 1914
delivered the opinion of the Court:
The learned trial justice was of the opinion that there was a complete failure of evidence on the part of the plaintiff to show negligence either in the preliminary examination of the deceased, or in the administration of the ether; but he withheld his judgment until the defendant had introduced his evidence,
(1) The omission from the first of these were certain choking sensations of the deceased, which his wife had testified to as occurring at times when he was sleeping, and communicated by her to defendant. The record shows that these choking sensations were included in the cross-examination of at least two of the surgeon experts; they might have been included in that of the others also. These sensations were relied on as important in determining the care required in an examination of the patient before preparing to operate upon him; and the uncontradicted evidence shows that such careful preliminary examination had been made by the defendant.
(2) The second exception is not well founded. It relates to the presence of physicians during the administration of the ether, and embodies strictly the evidence relating thereto.
(3) The third question relating to the condition of the valves of the heart at the autopsy. The operating surgeon testified that the valves of the heart were not affected. Plaintiff’s witness testified that the valves were affected, without describing the nature of the same. The evidence showed that there are several ways in which the valves of the heart may be affected, but that such affection, to be perceptible upon outward examination, must be of a nature indicated by murmuring sounds, which was not the case in this instance.
(4) In the course of the examination of Dr. Bovee, in response to questions concerning negligence in intrusting the administration of ether to an advanced medical student of experience, he said that it was the custom in the Mayo Clinic, in
(5) There was no error in refusing to permit the following question to be answered by Dr. Bovee: “In your opinion would a surgeon be in the exercise of due care if he intrusted the administration of ether to a student of the description given, without making some provision for the presence of an experienced physician ?” The evidence on behalf of the plaintiff shows that at least two experienced hospital physicians were present generally during the administration. They were employed in the hospital, and that they may not have been, provided by the defendant is wholly immaterial.
(6) There was no error in refusing to permit another medical witness to answer a question to the effect that if the administration of ether were intrusted to a student of medicine as described, in the absence of a duly licensed physician of the District, would the student be as likely to obtain successful results as a trained anesthetist?
The two physicians who saw the patient during the administration of the ether were graduate physicians and licensees of another State, and were not practising medicine in the District, but were engaged in the hospital and shown to be competent. There is nothing in the evidence to warrant an inference that the possession of a District license would have added to the competency of the physicians in attendance. That there could be no such inference is shown by the testimony of Dr. Bovee, who had answered affirmatively to the question if it would be safe to intrust the administration of ether to a student if a graduate physician was in the room. And he further stated that if such a physician were in the room, the student would be competent under the circumstances.
Again, Dr. Barton, to whom the foregoing question had been propounded, had already testified that the administration of an
(7) The last hypothetical question propounded by the plaintiff and excluded was to the effect if it would be reasonable care to permit the student’s administration without the presence of a physician during the excitement period,—the excitement period is the first stage of administration. The question was without foundation, as the evidence showed that the house physician was present during the most of the excitement period, and had testified to examining the patient and finding nothing unusual. Furthermore, the patient passed the excitement period safely and without sign of danger, and the administration lasted some tiventy or twrenty-five minutes longer.
4. The late Chief Justice Clabaugh, of the supreme court of the District, presided at- ilie trial, and delivered an opinion, in granting the direction of the verdict, in which the legal questions are correctly stated, and the evidence fairly and fully analyzed. We are satisfied with the soundness of his reasoning, and were it not that this opinion is already long we would recito it here.
The judgment is affirmed, with costs. Affirmed.
The Court: Now, Gentlemen, suppose death had not resulted in this ease and suit had been brought for the negligent administration of ether, without death. It seems to me that is the test in this case. Negligence can never be imputed to anybody because of the happening of an accident. Of course, I am not speaking now about res ipsa loquitur.
In the first place, as counsel very well says, before any negligence can be imputed to the defendant in this case, it must be established that the intestate died by reason of the effects of the ether. That is the first question, and without that the plaintiff has no standing at all in court, by the admission of counsel.
What does the evidence establish in this ease? The evidence, at the
There is no evidence in the case to show, and nobody says, that he died from the ether. There- are a great many of the defendant’s witnesses who say that if they had known the condition of this man’s heart, they would not have administered the ether, but that does not mean that it therefore follows because they did administer the ether it was the cause of his death. No reputable physician would ever take the chance of administering ether where the effect might be death, -without notifying the parties concerned.
Therefore, with the fact staring you in the face that nobody says to this jury that this intestate died from the effects of the ether, is it possible that the jury can say what the expert witnesses and all-other witnesses in the case say that they cannot tell? Does the law mean that a jury can pass upon the cause of the death of a man, when those who ought to know cannot tell? The plaintiff’s witnesses have said exactly the same thing that the witnesses for the defendant have said. Then, when all the witnesses concur in the statement that they cannot tell, on what theory of law can the court submit to a jury of twelve men unlearned in the sciences, the question of determining as to condition, when the experts themselves cannot tell?
It seems to me there is nothing else in this case. It is absolutely overwhelming, and, to my mind, it is absolutely conclusive of this question.
But if it were not,—who testifies in this case that Dr. Vaughan did not make a careful examination of this intestate? Of course, the only testimony in the case on that subject is his own. Nobody else could know unless they happened to be with him when he was making the examination. He tells you that he made a preliminary examination of the patient at his office, and told him it was only preliminary, and that he would make a further examination at the hospital. He goes on the stand and testifies that he did make that examination,—that he made it on Saturday; that he examined his heart, his lungs, and had a blood test made, and also had the urine examined. Does anybody say he did not? Is it not the line of conduct you would expect from a man
This physician states that he made this examination on Saturday, that he examined his lungs as 1 have stated, and that he used all of the means of examination that are employed in examinations of this character, as has been shown in the evidence in this case. They did not ask him for the particulars of the examination, but he told you that he listened to his heart and to his lungs and had these other examinations made. Then he examined him a second time, out of abundant caution, and found the same results.
This young student likewise examined him on the very day of the administration of the ether. It is not an examination that can occupy very much time. I think he says he took fifteen minutes in making it. Dr. Vaughan, when asked, says he does not know how long he took, but a sufficient length of time to establish the fact in his own mind.
Does anybody say, in contradiction, that there was anything else he could do? Do they not all testify that the examination is made by listening to the heart, by examining the lungs, etc., as already testified to in this case? Does anybody say that Dr. Vaughan failed in these particulars? Does anybody say he did not do something that he ought to have done? If that is the fact, where is the evidence of negligence on his part, in making this examination?
In addition to that all the physicians testify that it is practically impossible for any physician to foretell fatty degeneration of the heart, in advance of an autopsy. Does anybody say that, by the exercise of reasonable skill and diligence, it might have been discovered? The plaintiff’s witnesses and defendant’s witnesses all agreed that it is impossible to foretell it. Dr. Brown testifies that, after the autopsy, he found not only this condition of fatty degeneration, but also that the valves of the heart were affected. All of the other witnesses who testify on the subject say there was no other affection of any kind so far as the heart •was concerned, and that the man died of this fatty degeneration of the heart. So, then, the question arises, Were they unskilful in ascertaining that the valves of the heart were affected? There is no one who suggests how much the valves were affected, or whether they were in such a condition as to manifest any sign to the person examining the heart. We have testimony on both sides that there are valvular affections of the heart in which there is no murmur, and of which there is no
Then we go a step further and we are told that the physician in charge was guilty of negligence in directing the student in question to administer the ether. Who says, in this case, that there was any negligence in that? Not a single individual. One or two say that they ought not to take a pulse less often than at five-minute intervals. Now we are asked to submit to the jury, the question as to whether the agent whom Dr. Vaughan selected for the purpose of administering the ether was lacking in the ordinary care that would be required of a person who administered an anesthetic.
Can the court submit to the jury the question of whether he took the pulse only at intervals of ten minutes and therefore was guilty of negligence? That would be to permit the jury to guess or speculate. You cannot hold people responsible by evidence upon which the jury can draw an inference only by speculation. It must be proof that is positive to such a degree as that the inference naturally arises. In this case we have nothing but speculation on that subject.
But independent of all this, every physician says that the course this student pursued was a reasonably safe course, and that the manner of administering the ether was certainly the exercise of a reasonable degree of care, and one says of a high degree of care.
As to the quantity of the ether administered, some say it was an exceedingly small quantity, and that the fact that this intestate was under the influence by the administration of so small a quantity of ether was the best evidence to him of the exercise of the highest degree of care and ability in administering the ether.
Therefore, what evidence is there of lack of skill? The plaintiff’s own witness has testified on that subject, and she cannot attack her own witness. There is nothing to show that he is a hostile witness, or that there is any animosity on his part. It is true that he is the man who administered the ether; but the plaintiff called him and is bound by the
IIow could he do this? It is the simplest thing in the world, according to the statement of this witness. While he was holding the mask he could have his finger on one of the pulses that is, perhaps, plainer than the pulse at the wrist. So that, at all times, he would know the condition of this man’s respiration and pulse. Here you have an intelligent man testifying that he noted the pulse and respiration all the time and then took the pulse every live or ten minutes. Now, what does that mean? It can mean but one thing, that he differentiates between noting and taking the pulse. The witness has explained that he was at all times observing the man’s respiration and at all times noting his pulse, and that notation would develop whether there was any decided slowness or weakness of the pulse. You do not have to count to develop those things. You can tell it by the very feel of the pulse itself. You can do it yourself, if you have ever tried it. Here was a man who had been three years and a half at the school, who is plaintiff’s own witness, and who testified that he noted the pulse all the time and took the pulse every live or ten minutes.
I think it is worth while to consider what evidence there is in the ease of what occurred during the administration of the ether. Plaintiff’s own witness testifies that he took it comfortably, and that during the entire period of the use of this anesthetic everything was normal. Thüre was no indication that anything was wrong. There was nothing to indicate to his mind that this man was not taking the anesthetic normally and pleasantly, if you can use such a word,—in other words, that there was anything out of the normal; the evidence shows that he took twenty-five or thirty minutes, and that it was, as the other doctors stated, a very small amount of ether to have used in order to have gotten him into that condition. Plaintiff’s own witness testifies that everything was normal and there was not a thing out of the way.
The defendant comes on the stand and says that when he came in and saw him he looked as any other patient would have looked who was under the influence of an anesthetic, until he was being lifted from the table, when this condition occurred.
With this statement of the case, what is there for the jury to pass upon? I have adopted everything plaintiff’s counsel suggested to the court in argument. 1 always appreciate the method in which plaintiff’s counsel try a case and I have listened intently to all the points. X felt
I have gone into this case pretty fully because I think the plaintiff is entitled to have my views. They may be wrong, and I do not undertake to say they are not. One of the reasons why I prefer to sit in nisi prius court is because I am conscious of the fact that if the court is wrong there is a way to remedy it; and, even if he is reversed, he would rather feel that the parties to the cause had gotten justice notwithstanding any mistake he had made, rather than feel any regret that he should have been reversed.
If this jury were to find a verdict on the testimony in this case, in three minutes or in three hours, I would not let it stand, because the testimony is so perfectly overwhelming to my mind, as I see it, that I would not be justified, on any condition whatever, in allowing this case to go to the jury, as reluctant as I am ever to take a case away from the jury.
For the reasons I have endeavored to suggest, I feel compelled to grant the motion of the defendant in this case and will instruct the jury to return a verdict for the defendant.
Harry M. Clabaugh, Chief Justice.