Reed v. LaughlinReed v. Laughlin
At the close of plaintiff‘s evidence plaintiff dismissed as to the second count and stood upon the first and third counts. Defendants then offered demurrers to the evidence as to both the first
The ground upon which appellant bases his contention here that the trial court erred in granting plaintiff a new trial upon the third count is that the demurrer to the evidence as to that count was properly sustained and that under the evidence a submissible case was not made out as to that count. That is the only real question involved, being the sum of appellant‘s argument. We have carefully read the evidence which is set out in full. It is apparent that much, if not a major portion of the testimony, was directed to the first and second counts. However, we undertake to separate and segregate the testimony directly relating to the third count and to state what same tends to show viewing it in the light most favorable to plaintiff as it is our duty to do in determining whether a prima facie case was made.
Plaintiff testified that he was seized with a severe and almost continuous pain “all up and down the right side of my abdomen” and that the pain having continued for “something like a day and a half” and becoming worse he went to see Dr. Sites at Harris at “about three-thirty in the afternoon” of August 28, 1928. Dr. Sites made an examination, diagnosed plaintiff‘s ailment as appendicitis and advised an immediate operation. Dr. Sites arranged to take plaintiff to the hospital conducted by Dr. Laughlin at Kirksville and plaintiff left that same afternoon with and under the care of Dr. Sites to enter the hospital. Arriving there “about seven o‘clock” in the evening plaintiff was put to bed by hospital attendants and some examination and certain tests were made by internes. About “ten-thirty” that night Dr. Laughlin personally made an examination, confirmed the diagnosis made by Dr. Sites, stated an operation for removal of the appendix was necessary, that he would operate “in the morning” and gave directions to nurses as to the care and treatment of plaintiff. On the following morning, August 29, 1928, Dr. Laughlin operated. Plaintiff testified that, “about the time I woke up” after the operation “I began vomiting;” that his
Ordinarily when a physician or surgeon undertakes to treat a patient, without any special arrangement or agreement, he “impliedly contracts that he possesses and will use,” in the treatment of the patient, “a reasonable degree of skill and learning.” such as is “ordinarily possessed and exercised by members of his profession, in good standing, practicing in similar localities,” and “that he will exercise ordinary and reasonable care.” [48 C. J. pp. 1113-1115; Owens v. McCleary, 313 Mo. 213, 281 S. W. 682; Telanus v. Simpson, 321 Mo. 724, 12 S. W. (2d) 920; Fowler v. Burris, 186 Mo. App. 347, 171 S. W. 620; Robertson v. Wenger. 131 Mo. App. 224, 110 S. W. 663; Hales v. Raines, 146 Mo. App. 232, 130 S. W. 425.] It may also be said that as a general rule, in the absence of an agreement or understanding limiting the service, or reasonable notice to the patient that he will not undertake the subsequent treatment, when a surgeon is employed to perform an operation, the relation of physician and patient continues until ended by the mutual consent of the parties, the physician‘s withdrawal after reasonable
Applying the foregoing rules to the facts tending to support the allegations of the third count it appears that no question is made that Dr. Laughlin was possessed of the requisite degree of learning, skill and ability. So far as the evidence shows, and it strongly indicates such to be the fact, Dr. Laughlin was the physician in charge of the case from the time plaintiff entered the hospital and during the time he remained there nor was there any agreement limiting his service to the mere performance of an operation or agreement, understanding or notice to plaintiff that Dr. Laughlin would not thereafter attend and treat plaintiff, or see that he received proper care and treatment, as the subsequent developments and necessities of the case might require. Plaintiff placed himself in the hands of appellant Laughlin for care and treatment, submitting to and relying upon appellant‘s knowledge, skill and judgment. After the operation plaintiff remained under appellant‘s care, relying upon his judgment, and the relation of physician and patient with the duties and responsibilities such relation imposed upon the physician continued.
The argument is advanced that appellant is an osteopathic physician and “whether or not he exercised the requisite degree of care and skill in the treatment of his patient is to be tested by the general rules and principles of the osteopathic school to which he belongs and not by those of any other school,” citing numerous cases. But this argument has no application to the facts relating to the third count. That count does not proceed upon the theory that some improper method, system or course of treatment was used but that after the operation appellant negligently failed to discover and observe plaintiff‘s condition and symptoms and negligently failed to give, or cause him to be given, the attention and care which such condition demanded or to make any effort or administer any treatment of any kind whatsoever, to correct, relieve or abate such condition. Plaintiff‘s evidence, if believed, and upon a demurrer to the evidence it must be accepted as true, supports his theory. The condition, described in the evidence, which de
PER CURIAM:—The foregoing opinion by Ferguson, C., is adopted as the opinion of the court. All of the judges concur, except Hays, J., not voting because not a member of the court when cause was submitted.