183 Ky. 196 | Ky. Ct. App. | 1919
Opinion or the Court by
Reversing.
The appellee and defendant below, S. Annie Tates, is a physician and maintains an office in the city of Cincinnati, Ohio. The appellant and plaintiff below, Mrs. Louise Stevenson, is a married woman living in Covington, and at the time of the matters herein complained of she was about forty-two years of age, having been married about fifteen years and had never borne children.
Defendant had been plaintiff’s physician for some ten years or more, but it had been some time prior to February, 1915, since defendant administered, in any way to plaintiff. On that day plaintiff visited defendant’s office and stated to her certain symptoms which plaintiff had experienced and was experiencing, and at the time requested defendant to take charge of her case and submitted herself to defendant for proper treatment. This,, of course, required as a prerequisite a proper diagnosis of plaintiff’s affliction. Defendant made no physical examination but stood behind the plaintiff while she was seated in a chair and held plaintiff’s hands for about ten minutes when she told plaintiff that she was suffering with kidney trouble. The symptoms which
Another quantity of medicine was prescribed and plaintiff commenced to visit defendant’s office more frequently and continued to do so until the 15th day of October in that year. Throughout the whole time plaintiff had no periods of menstruation, they being entirely suppressed, a fact which defendant also knew.
On the 19th day of October, four days after plaintiff’s last visit to defendant’s office, there appeared a slight hemorrhage from plaintiff’s privates of which defendant was notified by telephone as well as notified of other conditions and symptoms of plaintiff; and defendant expressed satisfaction over what she said was a return of plaintiff’s menses, and asked plaintiff to visit her office on the following Saturday, which was the 23rd of October.
Plaintiff continued to take defendant’s treatment although suffering considerably and her condition not improving until Saturday morning, when another physician was called in, who discovered that plaintiff was then in labor and about to become a mother. She was removed to a hospital where,' about seven o’clock that night, a fully developed dead child was taken from her with the aid of instruments, after administering to her an anesthetic.
She stayed in the hospital about two weeks and returned home in a weakened condition and very nervous.
Plaintiff brought this malpractice suit against defendant alleging unskillfulness in properly diagnosing her case, and both unskillfhlness and negligence in the treatment administered as well as advice given relative to plaintiff’s conduct while in a state of pregnancy. She alleged that the medicine administered was of a very strong character and produced pains and rigors within about one hour after being taken, causing plaintiff to become nauseated and very nervous. She furthermore alleged that defendant improperly advised her to continue-to do her house work, which she had done throughout her married life, and whilch consisted in cooking, washing, ironing and general house cleaning, together with operating a sewing machine, and perhaps other labor which it was charged was improper to be performed by a pregnant woman.
The answer was a denial -only of. the negligent acts charged. Upon the trial and at the close of plaintiff’s testimony the court sustained the defendant’s motion for a peremptory instruction for the jury to find in her favor, which resxilted in a verdict accordingly, followed by a judgment dismissing the petition, and to reverse it plaintiff prosecutes this appeal.
The law is well settled in this, and we believe in all jurisdictions, that a physician or surgeon is answerable for an injury to his patient resulting from- want of the requisite knowledge and skill or from the omission to use reasonable care and diligence in the treatment of the patient -or to exercise such care and diligence to discover the patient’s malady. 21 R. C. L. 379; Dorris v. Warford, 124 Ky. 768; Vanmeter v. Crews, 149 Ky. 335; Acton v. Smith, 150 Ky. 703; Mason, et al. v. Meloan, 165. Ky. 582; Burk v. Foster, 114 Ky. 20, and Barnett’s Admr. v. Brand, 165 Ky. 616.
Concerning the standard of knowledge and skill and the required care which the physician should possess- and exercise under this rule, it is quite generally agreed that he is bound to bestow such reasonable and ordinary
Plaintiff, upon the trial, after testifying in substance as hereinbefore indicated concerning the diagnosis of her case, the beginning of the treatment, etc., said: “Q. What happened after you took some of this medicine? A. Well, I continued to stay the same. I never got any better. I would feel sick, cramps in my limbs and shortness of breath. Q. Now you began to take the medicine in February? A. Yes, sir. Q. And that continued right along? A. Yes, sir, every day. Q. How soon after you took any of this medicine did you feel any pains in the stomach and have to vomit and stiffness of limbs, how long was that? A. That was all during the time. I felt that way all the time. Q. Was there any period after you began to take the medicine that you did not feel the stiff limbs, pains in the stomach and have to vomit; was there any time after you took the medicine that you did not feel this? A. There was times that I did not take the medicine, and I felt better without it. Q. That you did not feel the stiffness of limbs, pains and.vomiting? A. I felt that way nearly all the time that I took the medicine. Q. How soon after taking the medicine did ymi begin to feel sick. A. About an hour afterwards.”
She then testified in substance that in June or July she began to feel different and explained her changed symptoms to defendant, including' the crawling sensation in her abdomen, when plaintiff told her she had a very powerful gas in her stomach and gave her medicine for it. From time to time thereafter she continued to inquire about the fact of her pregnancy and as late as the 15th of October this occurred. “Q. Tell the jury what occurred in -October. A. She gave me the same potion to take. Q. What did she say to you? A. Said it still existed; that it was my kidneys and she wanted to get them cleared up. Q. Did you say anything to her about being pregnant? A. Yes, sir, I did. Q. What did you say to her in October, the 15th? A. Just the same as always, and then I took this (hemorrhage) on Monday night. Q. But what did she say when you told her you was pregnant?- A. I told her I felt as
She further testified: “Q. "What else did she tell you with reference to your exercise? A. She said no kind of work would hurt me. Said not to go to picture shows.”
Upon this.advice plaintiff testified that she continued to do her household work, including sewing upon the machine almost daily, and performing other labors necessary to the running and keeping up of a house of some six or seven rooms, in which she and her husband resided; and that she would not have done this had she known that she was pregnant.
Physician witnesses testified that it is not best for a mother carrying an unborn babe to engage in exercise requiring much effort. In addition to the pain producing, nauseating and other effects of the medicine about which plaintiff testified it is shown by witnesses introduced by her that the process by which her child was taken from her was more painful and possibly more productive of impairing consequences to the mother than if the delivery had occurred in the normal way; and furthermore that the character of exercise which plaintiff took under the advice of defendant was calculated to seriously affect the mother and possibly produce the death of the unborn child.
Medical witnesses testified that at least three or four months after conception it is quite easy for a member of the profession to discover and detect pregnancy and that it is not a difficult task before that time.
The rule is universal in this jurisdiction that before the court is authorized to direct a verdict it should be prepared to say that admitting all of the testimony by the one against whom the verdict is directed and every fair and reasonable inference that might be deducible from it, he has failed to make out his case. Shay v. R. L. & T. P. R. R. Co., 1 Bush 108; United Shakers v. Underwood, 11 Bush 265; L. & N. R. R. Co. v. Howard, 82 Ky. 212; Baumeister v. Markham, 101 Ky. 122; Thompson v. Thompson, 17 B. Mon. 23; Dallman v. Handley, 2 A. K. Mar. 418; Buford v. L. & N. R. R. Co.,
Under the rule thus prevailing.in this state we cannot escape the conviction that the court was in error in directing a verdict in favor of defendant. The motion for a peremptory instruction is in the nature of a demurrer to the evidence and admits the truth of all the evidence introduced by the litigant against whom the verdict is directed. It is therefore admitted in this case that defendant was either greatly unskillful or grossly negligent in failing to properly diagnose plaintiff’s case, and because of that or for other reasons equally negligent or unskillful, wrongfully advised her as to the exercise she should take and the labor she should perform, and in addition gave her medicines of sufficient strength to at once produce pain, rigors, nausea, nervousness and other weakening and debilitating effects.
It is true that it does not appear what was the quality or character of the medicines prescribed, but we think, in a case like this, where the plaintiff is wholly ignorant as to such facts, that when he shows the effects and consequences which the taking of the medicine produced the burden shifts to the defendant to show that such consequences and effects viere not the results of the medicine. And furthermore that the defendant under facts similar to what we have here should be called upon to show that the advice given as to exercise and labor could not and did not produce injurious results.
We are not now called upon to determine the question whether the death of plaintiff’s child would be a proper element of damage in' a suit by the mother should the proof show it to have been brought about by the unskillful and careless treatment of defendant, since that question is not now before us, but we do hold that plaintiff’s testimony was sufficient to authorize a finding that defendant was negligent and unskillful and that as a con■sequence thereof defendant suffered some pain and sustained some damages which the jury would have been
"Wherefore the judgment is reversed with directions to grant a new trial and for proceedings consistent with this opinion.