51 So. 937 | Ala. | 1910
In McDonald v. Harris, 131 Ala. 359, 368, 31 South. 548, 550, the legal measure of care, skill and diligence of physicians and surgeons is thus defined: “The reasonable and ordinary care, skill, and diligence which the law requires of physicians and surgeons is such as physicians and surgeons in the same general neighborhood, in the same general line of practice, ordinarily have and exercise in a like case.” This statement was appropriated from 14 Am. & Eng. Law, pp. 76, 78. The like doctrine is announced in 30 Cyc. p. 1575. It is for the breach of this duty that the present action was instituted practically four years after the wrong complained of was alleged to have been inflicted'. The damnifying result is averred to have been the loss of the eye of the then 11 months old child, Velma Hacelip.
These facts are undisputed upon the record before us: That Velma had been affected with chickenpox and nausea, and the right eye (the one destroyed) was inflamed, ulcerated in the external corner, had scabs on it, and was infected with pus and “septic poison.” That defendant was called professionally to see her, mainly, it appears, for the eruption and nausea. That he examined the right eye, and stated that he would give a prescription for its treatment, and at the same time instructed the parent to keep the organ cleaned with the frequent application of warm boiled water. That what was received as this prescription was used by dropping three or four drops, from a teaspoon, into the eye after lifting the eyelid. That this application was made in the afternoon about 2 o’clock. That the child at once gave evidence of being in great pain in that eye, and, with its hands, rubbed off the scabs, and introduced the poisoning pus into the eye. That the sight of the eye was destroyed when examined on the succeeding morning, the destruction being accomplished by the thickening of the tissue over the sight of the eye.
The evident theory of the plaintiff (appellee) was on the trial that the liquid introduced into the eye contained carbolic acid, and that the destruction of the sight resulted from that. It is obvious that, if the loss of sight was due to disease, the defendant did not breach his duty, unless' in the treatment thereof he' failed to
The burden of proof in cases of this character is on the plaintiff to show that the defendant’s care, skill, or diligence in the given case was not that required, as stated, of physicians and surgeons; and it should be added that there is no presumption of negligence or want of skill arising from the failure to cure. — 30 Cyc. p. 1584, and authorities in notes. It is evident from this record that the controlling issue was whether the preparation applied to the eye was that prescribed by the defendant. As indicated, there was some evidence tending to show that the preparation was that prescribed by the defendant, and that it contained carbolic acia. It consisted of the testimony of Mrs. Daniel that the defendant brought the bottle to the house where the child was, and that out of this bottle the liquid was put
in the first place, the long period of time elapsing between the injury and the institution of the action, in connection with the undisputed fact that defendant was subsequently often called professionally to treat members of Mrs. Daniel’s family, are circumstances impossible tó be ignored in determining the weight to be given Mrs. Daniel’s, the next friend’s, testimony. In the second place, Dr. Sullivan’s testimony may be taken at the limit of its probative value, and yet, when boiled down, it amounts to- nothing more than that the injury “might” — a term, as employed, no stronger than possibly — have been produced by carbolic acid, or “might” (i. e., possibly) have resulted from a virulent form of conjunctivitus, a disease of the membrane of the eyeball. There was for the plaintiff no evidence that the eyeball or its membranes were burned by a caustic; carbolic acid being of that class of chemicals. ,On the contrary, the proof is conclusive that carbolic acid, when applied to the human anatomy — its component membranes — deadens, and the inevitable effect is to produce a sloughing of the cauterized part. There is a total absence of proof that any sloughing occurred. As we view the evidence here, it is impossible to cauterize a membrane with carbolic acid, and affect only to change its color. It is incredible on this evidence that the iris could be altered in color from brown to white by the application of carbolic acid, and at the same time avoid sloughing of the cauterized membrane.
The court should have granted the new trial. Its refusal was error, and on that account the judgment must be reversed.
■ There is no merit in the other assignments argued, as before stated, in brief for appellant. There was evidence, or reasonable inferences therefor, that forbade under our system the giving of the affirmative charge for defendant.
Reversed and remanded.