150 Iowa 433 | Iowa | 1911
Lead Opinion
This is the second appeal in this case. The opinion on the first appeal is reported in 138 Iowa, 402, where a sufficient statement of the issues will be found. One of the questions before us on this appeal is whether the court rightly held that Hrs.. York and Crawford were incompetent witnesses for the defendant under the record here presented. Dr. York was the plaintiff’s attending physician from the time of her injury until after'the operation on her at-the hospital, and Dr.
That the plaintiff waived the secrecy imposed by the statute as to what Dr. York did before she went to the hospital will clearly appear from her direct testimony in her own behalf, a part of which is as follows:
A. I suffered intense pain across my abdomen while going from the chicken house to my home. Q. I wish you would describe to me the nature and character as to whether or not it was a bearing down. A. It was a bearing down pain all of the time right across here, so severe I could hardly stand it going over home. This was right across my abdomen there over the womb. The doctor and my mother-in-law and my husband came to my house. The doctor did not do anything, only inject medicine in my arm and examine me. He examined me with a speculum, inserting it into my vagina. He remained about fifteen or twenty minutes. He.spent about fifteen minutes examining me. . . . The doctor came back to see me the next morning. The pain continued all night as it had during the afternoon and evening, and it made me
Plaintiff also went into the details of her treatment by Dr. York at the house with other witnesses. Counsel seek to avoid the effect of the ruling excluding Dr. York’s testimony as to his treatment of the plaintiff at her home by the claim that the questions asked him did not relate to any matter testified to by the plaintiff. Dr. York was asked if he removed a foetus from the plaintiff at the time, and if he performed such an operation as the plaintiff described and removed a foetus from her. In both instances objection was-made that the doctor was an incompetent'witness under the statute. The plaintiff pleaded that her fall produced a miscarriage, and all of her testimony as to the character and extent of her injury tended in the same direction. Her testimony as to the'nature of the operation performed by Dr. York and its results was intended to make the jury believe that a foetus was taken from her at that time, nor did she make any claim in her testimony that she was relieved of it .at any other time or place. Dr. York was a competent witness, and the error in rejecting his testimony was highly prejudicial, for the nature and
Perhaps a more doubtful question is presented by the rejection of both Drs. York and Crawford as witnesses relative to the operation in the hospital. The plaintiff herself testified on the-subject as follows:
On Wednesday following the Sunday I claim I had a miscarriage, a large lump in my side made its appearance. It was on the right side right across the right ovary. The lump grew in size. On the second Sunday following the accident, I was taken to St. Luke’s Hospital. The lump was then as large as my two fists. There was swelling and soreness across the abdomen. There was a hard lump. I had never had any enlargement on the side before, nor in any portion of my body. My husband went with me to the hospital and no one else. I was placed in a ward. I was very sick and suffered pain in the abdomen and had.fever. This lump spread across the abdomen. It appeared straight down from the navel right across the right ovary. There was pain in the region about my womb —kind of moderate pain. The more intense pain was across where the lump was. In the hospital they took hot water bags and put ice in them and laid them on my abdomen and across the ovary and examined me. They kept ice there for three and one-half days and then operated on me. After, they took off this ice, they inserted a rubber tube in my vagina to draw off the pus. The tube was about eight or nine inches long, and was left there about ten days. It reduced the size of this lump somewhat, but not fully. After that it drained off itself. Afterward on the 12th day of February, 1906, they performed an operation on me. Before the operation was performed, I was placed under anaesthetics. They put me under the influence of anaesthetics in some other room than the operating room. After the operation was over, I learned that they made an incision from the navel to the bone. The Drs. Crawford were there, but not in the room, when they gave me the anaesthetic.
Her husband went to the hospital with her, and he testified on direct,-as her witness, as follows;
Fifty-two errors are assigned, and most of them are argued to some extent at least. It is manifest that we
One of the counsel for the plaintiff is charged with serious misconduct in argument to the jury; but, as no exception seems to have been saved, we can not consider the matter.
There was evidence tending to show actual notice to the town of the defective condition of the walk and sufficient evidence to take the case to the jury. The court was therefore right in not directing a verdict for the defendant.
Other errors discussed by counsel need not be further considered.
For the errors pointed out, the judgment must be,
Concurrence Opinion
I concur in the conclusion that the judgment below should be reversed; but I do not wish to be bound by the discussion of appellee’s alleged waiver of her right to object to the disclosure by her physicians of information obtained in professional confidence.