132 S.E. 194 | W. Va. | 1926
From a judgment of the circuit court of Raleigh county, on the verdict of a jury awarding plaintiff $315.00 damages, in an action of assumpsit, the defendants prosecute this writ of error.
The testimony discloses substantially the following state of facts: The two defendants (physicians and surgeons) are and have been for a number of years the owners and operators of a general hospital in the City of Beckley, known as the Beckley Hospital; that as such owners and operators, some years prior to this action, they entered into a contract with the Beckley Coal Coke Company, a corporation, engaged in mining and shipping coal; that by said contract they agreed to accept into said hospital and treat the employees of said corporation, who became ill or were injured in the mine, and for said hospital services and treatment the corporation assessed each of its employees $1.00 per month, which amount was deducted from the earnings of said employees and paid to defendants by said corporation monthly. The plaintiff in this case was an employee of the corporation, and had been for some months prior to his injury hereinafter stated, and had paid to the coal company the said $1.00 per month in the manner above set forth. On the 7th day of June, 1923, about two o'clock, P. M., the plaintiff was seriously injured in the coal mines of said corporation while engaged in his duties as brakeman, having been caught between the bumpers of the cars and mashed through his hips and pelvis. He was immediately conveyed to the defendant hospital, where he was received, treated and operated on, some of the broken bones removed and his wounds dressed. He remained and was treated there for about thirty hours, when he was removed by his father and friends to the King's Daughters' Hospital and there treated until he recovered and was discharged. He paid for the services received at the last mentioned hospital $315.00. The action here is to recover said amount so paid on the ground of breach of his contract with the defendant corporation hereinbefore mentioned, under the authority of § 2, Ch. 71, Code. *105
The declaration consists of two counts. In each, after a recital of the injury and the duty of the defendant hospital under its contract, the breach thereof is set out in these words:
"In violation of their agreement with this plaintiff (said hospital) then and there refused to receive this plaintiff into said hospital, and to give or furnish to him there or at any other place, their professional services as such physicians and surgeons, even necessary in order that this plaintiff's life might be saved, and thereupon, it became and was necessary for this plaintiff then to be received, cared for and treated by a physician and surgeon in some other hospital of like kind and character in order that he might not lose his life as the result of said injuries."
Then follows the recital of his removal to the King's Daughters' Hospital, his treatment there, and the expense entailed because of such service.
The defendants insist that the refusal of the hospital to receive this plaintiff is the gravamen of the breach. That inasmuch as the fact that he was received and treated therein is uncontroverted in the proof, that the court should have directed a verdict for the defendant. It will be seen that in addition to the last mentioned allegation, each count contains the charge that the defendant hospital then and there refused "to give or furnish to him there or at any other place, their professional services as such physicians and surgeons, even necessary in order that this plaintiff's life might be saved, etc." The case was tried on this latter theory of the breach of the contract, as the one instruction given by the court on behalf of the plaintiff shows. We are unable to see any merit in the defendants' restricted interpretation of the breach. It would be exceedingly technical to so construe it. This leaves for consideration the defense interposed that the evidence does not support the verdict.
The issue is narrowed down to whether the defendant hospital gave and furnished to the plaintiff such professional services, while in such hospital, and necessary professional treatment, as was ordinarily furnished and as implied in the contract, at hospitals of like kind and character in the same *106
community, under like circumstances? The learned court in effect so instructed the jury. This is in substance the true test. Dye v. Corbin,
The physicians at the other hospital upon making an examination of plaintiff found his bladder was much distended. They tried to pass a catheter but were unsuccessful. They then tried to pass a sound and were unable to do that. Patient was then given an anaesthetic and the bladder opened from above, and a large amount of water was taken therefrom. They said that this was just the ordinary treatment that could be furnished at the Beckley Hospital. They saw the mark in the median line, which was the proper place, where there looked like there had been a trocar passed with the idea of entering the bladder in that; way. Dr. Wheeler said that the bladder was not being drained at that time and that he felt that the treatment that was given him under his direction was proper and necessary. It relieved the patient at once. He eventually recovered. On the other hand, Dr. Tieche of the Beckley Hospital says that at five or six o'clock, about two hours before plaintiff's removal from their hospital, that he tried to pass a catheter again and was unable to do it, and with a local anaesthetic then tried to pass a trocar above the symphysis in the bladder to relieve it in that way. He was unable to do it. He further states that at the time plaintiff was removed from the hospital that he was making preparation for emptying the bladder by opening up below. Dr. McCullough corroborates Dr. Tieche as to the foregoing, and makes the statement: "We would have done exactly the same as he (Dr. Wheeler) had done, which was perfectly proper, if he had not been removed from the hospital. That condition did not arise until that afternoon." Physicians testifying both for the plaintiff and defendants seem agreed that after *108
the bladder is distended much beyond its usual content that there is a loss of sensation of pain, and that it is before it reaches this condition that there is suffering. Both Dr. Wheeler and Dr. Jarrel say that Ward was suffering greatly when he was brought into their hospital. This would tend to show that there was not an over distention of the organ. Dr. McCullough stated that an entry to relieve the bladder may be made in two ways: one in the abdomen and the other between the legs; that while either is proper, a cut should not be made into a person's bladder unless it cannot be drained by any other method. This same witness said that he did not tell the uncle and father that the boy had no chance to live, and further: "He (plaintiff) was in a very serious condition and I did not think he would get well. As far as that was concerned, the chances were against him." Even Dr. Wheeler admitted, when Ward first came to his hospital, that "there was nothing certain about whether he was going to recover." Both defendant physicians say that plaintiff was given proper treatment while under their care. Can we say on this state of facts that the defendant hospital has breached its contract? A hospital conducted for private gain, of course, is liable to its patient for injuries sustained by him in consequence of incompetency or negligence of a physician treating him at its instance, under a contract to furnish him proper treatment. Vaughan v. MemorialHospital,
We are satisfied that the distracted father was prompted by good intentions in causing the removal of his son to another hospital. Whether the statement of the physician to him be as he understood it or not, at best it voiced only the opinion of the physician. It is a matter of common knowledge that the wisest and most skillful practitioners in medicine and surgery are often mistaken in diagnosis. The use of the trocar after this conversation shows the fact to be that there was a continuation of effort to relieve the patient by the Beckley Hospital physicians. According to the physicians an incision into the bladder for drainage purposes should be resorted to only when all other means fail. Can we say from the record that the Beckley Hospital would not have accorded to the plaintiff the same treatment as he received in the hospital to which he was later removed? The physicians in charge of the former say that they were preparing to do just what was done by Dr. Wheeler of the King's Daughters' Hospital, but that their plans were frustrated by his removal. Who says they were not? Dr. Wheeler, a man of unquestioned ability in his profession, does not say so. As a fair, high-minded man, he only tells the simple story of what he did do in the way of treating the plaintiff after he came under his charge, and the result of said treatment. When asked if the same treatment could not have been furnished at the Beckley Hospital, the Doctor answered in the affirmative. Thus upon the vital question here — the failure to give plaintiff proper treatment under its contract — the record is silent. It is the only ground upon which a recovery may be had. It cannot be left to the jury to find a verdict on mere conjecture.
Our conclusion is that the court should have directed a verdict for the defendant.
Reversed and remanded. *110