*1 AGNES al. WOOTEN v. DR. TOM et CURRY WILLIAM H. TOM CURRY et WOOTEN v. DR. al. S.W.(2d)820. September 8,

Eastern Section. 1961.

Rehearing Denied December 1961. by Supreme Certiorari Denied Court November CJV o cn *2 Chattanooga,

Walter L. Lusk, for in error. Strang, Carriger, Chattanooga, Fletcher, & Walker, for defendants error. Agnes P. J. Plaintiff

McAMIS, Wooten sued Tom malpractice periodic failing make exami- *3 following operation involving nations an female the organs charges vagina which the declaration caused the “grow together” the to to extent that com- it was almost pletely Her closed. sued for loss husband and services expenses medical and the two were consolidated suits directing for trial. From the of the action Court in a plaintiffs’ verdict at the evidence, close appealed. have prior May, Mrs.

For some time Wooten dropping prolapse or of the womb and a suffered from vaginal through protrusion of the walls rectum by Curry opening. Dr. these was advised correct She hysterectomy by surgery neces- was conditions hysterectomy Curry sary. performed a clinic Dr. his May remained 1958,where Wooten under on days period when she was allowed to for a of nine care check-up for a was told to return at the home return and operation The site of was of six weeks. end not period. during this defendant examined plaintiff defend- at end of weeks When returned six gave her medica- her some still did not examine but ant female her and her tion and return home cleanse told organs. she home She testified that when she returned medicine because that she could not use the discovered together. grown organs returned her female had then She along daughter her husband to defendant’s with According reported condition. to their clinic and this testimony then for the time her defendant first examined practically vagina was closed. that admitted daughter’s defend- is to the effect that

The completing upon the examination that did stated ant why planitiff was he did condition; that not know this happen if he had examined her “and intend it it”. sooner he would have seen quote testimony as to the statement- Mr. Wooten’s We Curry this occasion: Dr. on made only go by, just thing I have to what he “That only thing that looked it was the like me. That told sorry happened he was and could it. He said it caused probably avoided if he had her have it checked on ’’ as he should. foregoing statement Plaintiffs insist against an admission or declaration constitutes require evidence to submission sufficient interest *4 jury if entitled not, the were but, of cases to ipsa loquitur. go jury under doctrine res the to be for reasons concluded, stated, We have unexplained Curry, it is Dr. statement attributed to as present that, evidence record, in some in examining Dr. failed to sooner, Mrs. Wooten

553 judgment exercise probable Ms best tMs was operation. cause of the condition which followed the correctly It said defendant’s counsel that plaintiffs, of Dr. Wood, a witness for shows prevailing Chattanooga that there is no rule fixed in toas type operation whether in this it is better run risk of making infection manual examination and given that, whether in a case, the examination should be judgment physician made must left to the of the charge. physician judg

aWhere in the exercise of best ment follows an course of alternative treatment sanc approved by competent tioned authority medical pursue held can not be liable because he failed to another Casenburg and different course. Lewis, v. 163 Tenn. 163, (2d) Quinley 40 S. 1038; W. v. 183 Tenn. Cocke, 428, 441, (2d) 192 992; Ford, Gresham v. 310, Tenn. (2d) Floyd App. S. 408; W. 26 Tenn. Walls, 151, S. 602, W. 607. physician’s employment,

A contract however, requires judgment that he use best his own in the treat may ment of his and he be held liable for failure Blankenship Baptist, Hosp., to do so. etc. 26 Tenn. 168 S. 491 and W. cases there cited. 41 Physicians Surgeons, Am. 6, 198, Jur. Section Physicians Surgeons p. 70 C.J.S. sec. Curry’s employment required contract of him, following operation, care of Wooten

choose between the alternative methods and judgment to exercise his own best as to the wisdom of making manual examination. The statement attributed unexplained, by Mr. to him could be Wooten, considered *5 thought by jury showing as to do what the failure a particular This “should” have been done in his case. implies upon negligent bring case a failure bear the to judgment as to to be best the course followed. meaning weight given the an

The to be of, and against generally or interest are admission declaration questions jury. Ry. 20Co., West v. Southern Tenn. and there cited. authorities 491, 100 surgeon operating performing

An an must, after operation, judgment exercise the same skill and in the necessary subsequent performing in treatment as by employment operation unless excused the terms or damages may be held answerable in judgment such skill and for failure to exercise in the patient. postoperative care and treatment of the 41 Am. Physicians Surgeons, Jur. Section 98. counsel that declarations It is insisted defendant’s by physician against interest admissions made are a competent negligence evidence of action for an malpractice. admissibility

We think the such statements governed by by physician to be a the same if rules as by had been made statement declarant wit as a necessary, contrary that it be course, It is ness. opinion, and, declarant if the form of an interest subject upon which declarant would about speak expert competent an as witness. It must be something than a statement of more failure to effect a recognized adopt alternative cure or to one method of preference to some treatment in other care or purport short, it must to show In method. failure proper according physician’s exercise care to the best judgment particular in the case under consideration. upon think

"We the statement which the rely here all meets of these criteria. *6 generally sustaining admissibility

Cases of such malpractice sup declarations in cases and cited porting (2d) brief Stellwagen, include Madis v. 38 Wash (2d) Beringer 1,227P. App. 445; v. Lackner, 331 Ill. 591, (2d) 73 N. E. 620; Thomas v. Merriam, 337 P. Mont., (2d) Bungardt Younger, 604; v. 112 Okl. 239 165, P. App. Scott 66 Sciaroni, Cal. 577, 226 P. 827; Wickoff App. (2d) 159 (2d) Cal. James, 664, P. Curry

holdWe that the statement of Dr. in the absence any explanation prima negligence of made a facie of case proximate cause. necessity

In view of for another think we trial, proper say judge it is we think the learned trial cor rectly inapplicable ipsa loquitur held the doctrine of res proof both because shows that condi Wooten’s from a tion could have occurred number of causes other negligence defendant, than of Poor Sisters, etc. v. Long, 190 Tenn. 230 and because the applicable proof doctrine not where the shows upon. negligent act relied Granert v. 17 Tenn. Bauer, apply holding, 370, S. W. 748. To the latter purported as we if, hold, statement negligently evidence that failed to examine Mrs. probable this was of her Wooten cause ipsa inapplicable. becomes res condition, appeal will be taxed to defendants Costs in error remanded for another the causes trial. Cooper, JJ., Hale and concur. Petition to Rehear

On petition to rehear addi- filed a Defendants parties. both authorities have been cited tional rely again original defendants brief, As in their testimony two strongly are there that on Dr. Wood’s thought examine the it is best to as to whether schools of testimony His on risk of infection. and run the developed long subject to show how such that was according postponed to the school should examination testimony, delayed thought favoring His examination. passed danger had of infection at shows all however, discharged days was when Mrs. Wooten of nine the end hospital that, no accord- and there is from the thought, ing any examination school passed. danger delayed His has after that should be *7 “common sense” also effect that it is is to present should condition not result that Wooten’s operating operation type this from precautions see surgeon to that the tissues do take should together. grow back not original opinion attempted clear in our make

We a admission which declaration or under the conditions malpractice physician in a admissible suit would a he declaration of Dr. that held that patient implied in this examined that have “should” judgment. his best The remarks to use he failed instance passing judge on the motion for a directed the trial language brought this if had been that indicate verdict go would have been allowed the case attention to his alleged speaking jury. admission Dr. In to the Curry, said:

557 say “The doctor did ‘I should done this thing’. He ‘If said, I I had would have it’ looked, seen as I testimony.” understand the rely strongly upon

Defendants Quickstad v. Tavenner, 196 Minn. 264 125, 436; N. W. Loudon v. 58 Mont. Scott, 194 645, 12 488, P. A. L. R. 1487 Fink v. 166 Steele, proceed Md. 171 A. theory 354, 49. These cases on that an admission of failure to do what “should” have done judgment been fails show a lack of skill and — not implies it judgment that a failure to exercise the best physician capable. which the was emergency post

Where there no involved in the operative physician duty care of a bound to judgment exercise own best between standard and practices. methods and Casenberg See v. (2d) 40 163 Tenn. Quinley Lewis, 163, S. W. 1038; v. (2d) 183 192 428, Tenn. 992 Cocke, both in our opinion, original 41 and Am. Jur. 201. expressions holding by physician

Cases more or less competent similar to here involved as an admission carry jury Pappa sufficient case to include (2d) 286 (1958); Bonner, Ala. So. 185, 105, v. 87 Sheffield App., (Cal. 1958) (2d) Renner 328 P. v. 828; Rotan v. S. (2d) 107 U. Breenbaum, D. C. 273 F. 830 (2d) (1959); (Mont. v. 337 Merriam, Thomas P. 604 1959); (Okla. Harris, P. 1961); Greenwood 320 Mass. Sewall, N. E. Woronka *8 Mehigan N. H. Sheehan, 51 A. Synhorst, 243 Iowa 872, N.

Strickleman W. generally Physicians 70 C. J. S. see And Sur p. 1008. geons sec. upon

Upon both constrained, further we reflection are weight authority, our to adhere to and the reason clear original their entitled are view Accordingly petition go jury. rehear cases to the is denied.