Rogers v. Voorhees , 157 N.Y.S. 330 ( 1916 )

Smith, J.:

The action was originally brought against the trustees of Columbia College and James D. Voorhees for damages on account of injuries sustained by the plaintiff while a patient at the Sloane Maternity Hospital for the purpose of confinement, by reason of the breaking off of the glass tip of a vaginal douche while it was inserted in the vagina of the plaintiff and permitting the .broken fragments to remain imbedded in her flesh without informing her thereof. It was subsequently discontinued as to the trustees of Columbia College, and at the opening of the trial the complaint was further amended over the objection of the defendant, setting up the claim that after the plaintiff’s discharge from the hospital the defendant Voorhees continued to treat her and negligently failed to discover the presence of the fragments of glass in her person until the month of December, 1909.' She had left the hospital July 7, 1909.

It appears from the evidence that the plaintiff was attended by Dr. Voorhees during her confinement at the Sloane Maternity Hospital; that shortly after her" confinement she suffered from the effects of what was subsequently found to be the presence of fragments of glass in the wall of the vagina; that she was discharged from the hospital without the discovery of such condition; that thereafter she consulted Dr. Voorhees and was treated by him because of her continued suffering; that the doctor made several examinations and attributed the trouble to the failure of the stitches to heal, which were necessarily taken in the person of the plaintiff after the birth, or to the fact that the gut used in sewing up the torn parts had not absorbed or assimilated in the plaintiff and calcareous matter had accumulated.

It would hardly be profitable to enter into a discussion of the facts of this case in this opinion. The plaintiff has completely recovered. The only negligence claimed against the defendant is for his delay in making such an examination of the vaginal cavity as would disclose the foreign substance thereafter found. Two experts of standing have sworn in behalf of the defendant

that it would have been poor surgery to have made such an examination as would disclose the existence of foreign substance before the time that it was actually made by the defendant. One expert on behalf of the plaintiff has sworn that such an examination ought to have been made three months before it in fact was made. It is always easy after the cause of an injury has been found to look back and say that that cause should have been sought for. To my mind the jury failed to give proper force to the fact that this defendant had never had the slightest cause of suspicion that any foreign substance could be causing this trouble. Every fact surrounding the case and its treatment would constitute almost proof of its absence. The breaking of the glass of a vaginal douche within • the vagina is a circumstance so rare as not to have been reasonably contemplated at any time by the defendant, and for failure to anticipate this most unusual occurrence the defendant has been most unjustly charged with a substantial money judgment, and, what is worse, with a stain upon his professional fidelity. That this verdict is clearly against the weight of evidence I have no doubt whatever.

The judgment and orders should be reversed and a new trial granted, with costs to appellant to abide the-event.

Clarke, P. J., concurred; Dowling and Page, JJ., dissented.