85 Kan. 207 | Kan. | 1911
Lead Opinion
The opinion of the court was delivered by
This action was brought by the appellant to recover damages from the appellees by reason ■of their alleged negligence and unskillfulness in performing a surgical operation upon Jesse B. Wingfield, the appellant’s deceased husband, which resulted, as alleged, in the death of Jesse B. Wingfield. The appellant introduced her evidence and the appellees demurred thereto, which demurrer was sustained by the ■court, and judgment was rendered against the appellant for costs. This was the principal error assigned. The ■only other assignment of error is in the rulings of the court excluding the testimony of one Heckelman, an ■expert in X-ray photography, and plates produced by him for the purpose of illustration.
The uneontroverted facts seem to be, in substance, that the deceased was a farmer, and resided about fifteen miles-from Junction City; that on the 3d of October, 1908, he worked' in the field, apparently in good health; that the evening of that day he spent at a neighbor’s, and came, home late at night and to some ■extent under-the influence of intoxicating liquor; that he went to bed and slept until sometime after midnight, when he awakened and missed his upper set of false teeth, and declared that he had swallowed them — that they were sticking in his throat — and caused appellee Doctor King, who lived in .Junction City, to be sent for; that the doctor arrived in the early morning of October 4, and after being told by Wingfield that he had swallowed his teeth and they were lodged in his throat the doctor examined the throat, by inserting his
On arriving at Topeka they took a street car, transferred from one car to another, walking about half a block, got off near the hospital, and walked a block thereto. After arriving at the hospital the deceased walked out on the porch and smoked and talked, had no paroxysms of his throat, did not attempt to vomit, and seemed to breathe and talk easily. Doctor King introduced the daughter to Doctors McClintock, Bowen and Kiene, told them that she was the daughter of the man they brought to operate on, and said to them: “This man is in bad shape.” He also inquired if they wanted to examine him. Doctor McClintock replied that he
Thereafter, Doctor Yates, assisted by Doctor Keith, and in the presence of Doctors Bowen, Mulvane, Kiene and Amis, made a post-mortem examination of the body from the throat to the rectum, and found no false teeth lodged therein.
There is conflict in the evidence of expert witnesses called, of whom there were a number; but there was testimony to the effect that it would not conform to the standard of skill and care commonly exercised by surgeons of ordinary skill and learning in such cities as Topeka and Junction City to perform an operation which involved cutting into the esophagus of a person for the purpose- of extracting a full upper set of false teeth supposed to be in the esophagus, without first definitely and certainly ascertaining by means of the X-ray that the set of false teeth for which the operation was being performed was lodged in the esophagus as supposed; also that there are two means of ascer
It is contended on behalf of Doctor King that he relied upon his examination of the throat on the evening before the patient was brought to Topeka, but there is evidence that he did not rely upon such examination, but said that they would bring the patient to Doctor McClintock, who had the best X-ray apparatus in the state, and they would definitely locate the teeth before operating.
It is argued on behalf of Doctor McClintock that he had a right to, and did, rely.upon the statement of Doctor King that he had made an X-ray examination and located the teeth in the esophagus the day before; but there is evidence that he did .not rely upon this statement, but that he himself, before the operation, probed the throat with an olive-tipped probe and did not discover the teeth; and there is evidence that this
We think this conflicting evidence presented an issue of fact for the determination of the jury, which should not have been-determined upon the demurrer to the evidence.
It -is also argued that' the patient repeatedly declared that he had swallowed his teeth, and said to Doctor King that if he did not cut- them out he (the patient) would go elsewhere and have them cut out; and that Doctor McClintoek was informed of this declaration, and was employed only to perform the operation. It is ¡said that the trial judge based his ruling upon the evidence of such statements by the patient, as showing that the patient himself induced the operation and justified the surgeons in relying thereon and performing the operation.
Again, it may be said that the surgeons did not depend upon the statements of the patient, but did examine for themselves. The examination made by Doctor King satisfied him that the teeth were in the esophagus, as claimed by the patient, but the examination made by Doctor McClintoek, in the presence of Doctor King, demonstrated positively, if the evidence for the appellant be taken as true, that the teeth were not in the esophagus, and, inferentially, that if'the teeth were in the Tody at all they must have descended into the stomach, ;and that the use of' the X-ray would have' disclosed whether or not they were in the stomach. At any rate 'there is a question whether the misapprehension of the patient or the failure to exercise care on the part of the surgeons, if there was such failure, was the proximate cause of the operations upon the patient. This is a question of fact for the determination of the jury.
Considerable argument is made in the briefs of the appellees upon the degree of care and skill legally required of physicians and surgeons. We do not deem it necessary to discuss this question. If the evidence
The appellant also complains that evidence of an X-ray shadow picture, taken by placing under a dead body a set of false teeth, composed of porcelain teeth set in gutta-percha, being a view taken from the opposite of the body, was rejected by the court as evidence in illustration of what might have been disclosed by an X-ray examination upon the living patient: Evidence of experiments tried under the same or very similar conditions have been recognized as admissible. If the court regarded the condition under which the X-ray picture was taken to be such that it would not demonstrate whether a like picture of the neck or stomach of the living patient would disclose the presence or absence of the teeth, the exclusion of such exhibit could not have influenced the ruling on the demurrer. As the case is likely to be tried again, we should, perhaps, say that it is a matter of common knowledge that the presence of an opaque object in the human body may be discovered by the X-ray process, if no other opaque substance intervenes; yet, as the shadow picture may be greatly changed by different positions of the body with reference to the instrument, and by other conditions, and may be misleading instead of instructive, it devolves upon the court to allow the introduction of only such experimental evidence as clearly appears to be.an aid to the jury in determining the fact in issue. From the preliminary evidence- presented it does not appear that the court erred in the ruling. . '
As to appellee Doctor Bowen there seems to .be no evidence that he was employed in the operation or
Dissenting Opinion
(dissenting) : Doctors King and Mc-Clintock could be convicted of malpractice only upon expert testimony that their conduct was improper under all the facts and circumstances, and the precise facts and circumstances, under which they acted. No questions of this kind were propounded or answered. Consequently there was nothing upon which the jury could rest a verdict.