170 Ky. 263 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
Mrs. Annie Miller and her husband, J. J. Miller, brought this suit February 5, 1914, against appellees, Drs. Blackburn and Francis for malpractice, alleging that in treating her, as physicians, in September, 1911, they broke or injured the neck or head of the femur by negligently manipulating her leg causing it to be shortened about three inches, and to turn outward, as the result of which the use of her leg was nearly destroyed, and she is compelled to walk on a crutch.
At the time of the operation she lived at Richard sville in Warren county, Kentucky, about ten miles from Bowling Green where Dr. Blackburn resided. Pursuant to an employment by plaintiff’s husband Dr. Blackburn on September 7, 1911, went to her home and made an examination of Mrs. Miller. As a result of this examination, which seems to have been a very thorough one, Dr. Black-bum pronounced that she was, suffering from a chronic case of sciatica, and he discovered no other trouble of any kind. Mrs. Miller was. lying in bed with her right leg stiff at both the hip and knee joints stretched straight out with the toes, upright. There is no question made but that Mrs. Miller was suffering from chronic sciatica with which she had been afflicted for nearly a year, and that she had been confined to her bed as a result thereof for about three months prior to the examination, during all of which time she had the attention of a physician, Dr. Francis, upon but two occasions when her suffering had been so intense as, to require the administration of a narcotic, and upon both of these occasions Dr. Francis had been informed by her husband that if his services were needed further he would be notified.
After making the examination Dr. Blackburn informed Mrs. Miller and her husband that, in his judgment, an operation would be necessary to break up the adhesions
Dr. Blackburn in his testimony described the manner in which he performed this operation, about which he is not contradicted, and all of the evidence of the physicians introduced on both sides was that the operation as performed was proper as indicated by the existing stage of the disease. Before beginning the operation Dr. Blackburn had informed the ladies in attendance that if they would listen they would hear a popping or cracking noise as the adhesions were broken up, and during the operation he called their attention to such a noise, which was noticed by all of them.
Dr. Blackburn and Dr. Francis remained in the house mifil Mrs. Miller regained consciousness, and when leaving Dr. Blackburn left instructions that the affected leg should be manipulated each day in much the same way he. had done in order to prevent the adhesions from forming again.
During the next day Dr. Francis, paid, what he termed, a social call upon Mrs. Miller, and for which no charge was made, to see how she was getting along, and except for this call neither Dr. Blackburn nor Dr. Francis ever saw the patient professionally again, nor was either of them or any other physician ever called to see Mrs. Miller until January, 1913, when she had gotten well and then she consulted another physician, presumably for the purpose of ascertaining the cause of her crippled condition.
After the operation the leg was manipulated a.s directed for about six weeks, when the manipulations were
All of the physicians who testified in the case, including Dr. Victor Meddis of Louisville, who was introduced by appellants, stated that the present condition of Mrs. Miller’s leg is the result of a tubercular condition of the upper end of the femur, which destroyed a portion of the bone permitting the muscles of the leg and hip to shorten the leg to the extent that the bone was destroyed by the tuberculosis.
At the conclusion of appellants’ testimony, a motion by appellees for a peremptory instruction was overruled, which motion was renewed at the conclusion of all the ■evidence, and then sustained by the court, and a judgment entered dismissing appellant’s petition.
As reasons for reversal of this judgment, appellants present three propositions: (1) That appellants second amended petition should have been filed. (2) That the court should have instructed the jury that if the relationship of physician and patient had been created, it was the duty of appellees to have rendered such continued treatment after the operation as the nécéssity of the case required. (3) That there was some evidence tending to show negligence in the operation, and that a peremptory therefore was improper.
In the original petition the negligence alleged was that-in performing the operation the leg was so negligently manipulated that the head of the femur was either
In the second amended petition offered by appellants, but not permitted to be filed, they alleged that the negligence of the defendants consisted in breaking the neck of the femur. The allegations of the second amendment were immaterial as they in no wise changed or enlarged appellants cause of action as stated in the original and first amended petition. The negligence relied upon in the first amended petition was the injury to the bone of her leg at the hip joint which was ample to cover and to include all that was asserted in the second amendment; besides, appellants were permitted to introduce all the evidence offered upon any kind of an injury, including a fracture, of the femur at the hip joint, and the peremptory instruction was given not because of any variance in the proof from the pleading, but because of the court’s conviction that she had failed to make out a case in that she had failed to prove any injury, including a fracture, caused by negligence upon the part of appellees in performing the operation.
Here all of the evidence is to the effect and conclusive that the services of Dr. Blackburn were concluded by assent when the operation was performed. No other conclusion could be drawn from the testimony of Dr. Blackburn and the conduct of appellants in not calling him; but however that may be there is no evidence that the deplorable condition in which Mrs. Miller undoubtedly is now, is attributable in any degree to the failure of Dr. Blackburn to go to see her again after the operation, even if conditions had been such as to create an implied contract for him to do so, as will more clearly appear in our discussion of the evidence under the third proposition.
It is also contended for appellant that it was negligence upon the part of Dr. Blackburn to have failed to discover in his examination the existence of the tubercular condition of the hip joint before he attempted the operation, but this contention is not sustained by the evidence, nor is there any evidence whatever that any such condition existed in the hip at that time. Besides, it is shown in the evidence by the medical experts without contradiction that even if the tubercular condition had existed and had been discovered, that her condition from' sciatica was such as not only to warrant, but even to demand the risk of the operation that was performed.
“Before the plaintiff can recover, she must show by affirmative evidence: 1st. That defendant was unskillful or negligent; 2nd. That his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, she has presented no case for the consideration of the jury. The naked facts that defendant performed operations upon her eye, and that pain followed, and that subsequently the eye was in such a bad condition that it had to be extracted, established neither the neglect and unskillfulness of the treatment nor the causal connection between, it and the unfortunate event. A physician is not a warrantor of cures. If the maxim res ipsa loquitur, were applicable to a case like this, and a failure to cure were held to be evidence however slight of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ‘ills that flesh is heir to.’ ”
To the same effect is 30 Cyc. 1584.
Appellants having failed, as we are convinced after a careful consideration of the record, to show any want of care or skill upon the part of' either of appellees as the cause of her present condition, we are of the opinion that the peremptory instruction was properly given, and therefore the judgment is affirmed.