Prewett v. Philpot ( 1926 )

^* Corpus Juris-Cyc. References: Physicians and Surgeons, 30 Cyc., p. 1570, n. 19; p. 1587, n. 78; p. 1588, n. 85. This is a suit by Cortez Prewett, a minor, by his father and next friend, against Dr. Van Philpot and the Houston Hospital, for an injury which he alleges he received because of the negligence of Dr. Philpot and the hospital while a surgical operation was being performed on him at the hospital by Dr. Philpot.

The operation was for appendicitis, and was performed by Dr. Philpot in an operating room of the hospital at night in June. One or more windows to the room were left open during the operation; they were screened with wire, but a large number of bugs came through them, and were in the room while the operation was being performed. They were small, hardshell beetles about the size of a corn weevil, and, in order to prevent their getting into appellant's wound, a nurse fanned him constantly, and several times the wound was covered by a piece of gauze, and an electric light immediately above the operating table was turned off and lights on the walls of the room were turned on so that the bugs would be attracted from the patient thereto. These bugs were too small to be kept out of any screen that would have been suitable for ventilating the room. It does not appear from the evidence whether the windows were opened before or not until after the operation was begun.

The appellant was discharged from the hospital by Dr. Philpot about ten days after the operation, and a few days thereafter his wound became inflamed and pus began to form therein to such an extent as to necessitate his being again carried to the hospital, where he remained for some days, during which time Dr. Philpot reopened his wound and drained and treated it. Before the appellant returned to the hospital two bugs of the kind which were in the room while he was being oper on were gotten out of his wound by his mother, and the jury would have been warranted in believing from the evidence that the bugs got into the wound while the operation was being performed, and caused it to become inflamed and the pus to accumulate therein.

The damage sought to be recovered is for the pain which the appellant suffered after his first discharge from the hospital, because of the pus which formed in the wound, and the reopening and subsequent treatment thereof.

A physican who was present at the operation testified that the opening of the windows made it feel "a lot better to us who were in there, and it did not do the patient any harm." A surgeon who was not present at the operation testified that it is customary for the windows of a room to be closed while a surgical operation is being performed therein, though when the heat becomes oppressive "we raise a window;" that excessive heat might be injurious to the patient, and that he did not think it would be negligent to raise a window during a surgical operation "on an average day in June in this country."

All of this appears from the evidence introduced by the appellant, which the court excluded, and directed the jury to return a verdict for the appellees.

A surgeon must exercise reasonable care when operating on a patient to prevent foreign matter that will be hurtful to the patient from getting into and remaining in the wound made in the course of the operation. Saucier v. Ross, 73 So. 49,112 Miss. 306.

Assuming for the sake of argument that after the bugs got into the room where the appellant's operation was being performed the appellees did all that could have been done to keep them from getting into his wound, nevertheless the bugs would not have gotten into the room had the windows thereof been kept closed as they should have been, unless the operation could not have been properly performed without ventilating the room by opening the windows. While it appears from the evidence that the operation was performed on a hot night, it does not appear therefrom, first, that the windows were opened because of the heat; and, second, that the heat was so great as to make it necessary to open the windows in order for the operation to be properly performed. Some reasonable explanation for opening the windows must be given before the appellees can be held not to have been negligent in permitting the bugs to get into and remain in the appellant's wound.

Stress seems to have been laid in the court below, and by counsel for appellees here, on the testimony of one of the witnesses that he did not think it would be negligent to raise a window during a surgical operation "on an average day in June in this country." This testimony was not objected to when given, and, assuming for the purpose of the argument that it was in response to a properly framed question, its weight and sufficiency would have been for the determination of the jury.

A motion for a change of venue was made by the appellant and overruled, but it will be sufficient to say with reference thereto that the evidence fails to disclose that the appellant was entitled to a change of venue.

Reversed and remanded.