Carraway v. Graham ( 1928 )

We have heretofore said:

"The physicians at Goodwater treated him for a week and then, being both of opinion that the abdomen would need to be opened, took him to defendant's hospital at Birmingham."

Counsel for appellee submits "that there is not a line in this record to the effect that both physicians at Goodwater were of the opinion that the abdomen would need to be opened." We presume it was intended to lay emphasis on "both," or, possibly, the objection is to the mere form of the statement. Reading the record again, we find that Dr. Eugene Argo, who had plaintiff's case in charge at Goodwater until he (plaintiff) was taken to Birmingham, deposed as follows:

"I was called to see Hugh Graham, and he had a pain in his lower abdomen, on the left side. * * * This inflammatory condition was in his lower left bowel, lower left side. Down there in the vicinity of the groin. * * * It was more pronounced in the abdomen than in the hip. * * * We (meaning Dr. Carraway and himself) didn't know at that time" — the time of Dr. Carraway's examination — "that he (plaintiff) had been hurt in a football game. (As to that, however, there was conflict in the evidence.) He denied that. * * * I said that in my judgment the seat of the inflammation was in the lower bowel. That is a part of the abdomen. Dr. Wilson (meaning Dr. Jno. W. Wilson) and myself concluded that the inflammation was on the inside and that it had to be cut open to get to it, and that is why we brought him to a surgeon."

Dr. John W. Wilson, who saw plaintiff on one occasion, having been called just before the trip to Birmingham, deposed among other things:

"We (meaning Dr. Eugene Argo and himself) arrived at the conclusion that it was a surgical case, and that he (plaintiff) should be referred to a surgeon. By saying it was a surgical case, I mean if we country doctors get stumped we send them off to the town doctors, you know."

In the forepart of his examination by plaintiff's counsel this witness did say:

"The pain that he complained of was in his left side in the region of the hip. He was complaining of pain in his left side exclusively, his hip bone and his thigh on the left side. I could not see any reason for operating on him for appendicitis in the condition he was in, nor for operating on him for kidney trouble or to expose his kidneys. [Record 31.] There was nothing about his condition that indicated to me, as a physician, he should be operated on for appendicitis. [Record 31.]"

The witness further said:

"I have an idea as to what was creating this pus in this boy's system, and it seemed like there was an abscess within the concavity of the hip bone. I mean by that there was an abscess on the inside between the hip bone and the bar (sic), outside the peritoneal cavity. If it had been in the peritoneal cavity it is most likely that he would have been dead in a little while."

This witness also said:

"The pain was about the hip joint and thigh and knee, and it was tender to touch, but more painful than tender, as I remember it, and that indicated to me that there was pus in his system somewhere, and it was my judgment then that the pus was inside of his system. * * * "We (Dr. Eugene Argo and the witness) came to the conclusion that this pus was coming from the inside, and not on the outside. * * * His condition was getting worse, and if it had kept on getting worse he would have died. * * * In my judgment as a physician that Sunday afternoon I came to the conclusion that to get the pus out of this boy's body, or system, we would have to operate, and go inside to find the pus. * * * We failed to locate this pus, and that is why we sent him to Birmingham."

We have quoted the bill of exceptions, and while in the original opinion we did not think it necessary to quote so copiously, we now, after further examination, reiterate our judgment that the physicians at Goodwater were of opinion that the abdomen would need to be opened.

Plaintiff was subjected to the operation of which he complains in order to learn what his trouble was and to remove the cause of that trouble, whatever it might be. The expert medical and surgical opinion was that the operation was indicated, and whether or not defendant erroneously thought plaintiff's appendix was the cause of his condition is of no consequence. Dr. Cunningham Wilson, a surgeon of great experience and distinguished reputation, after hearing a statement of plaintiff's condition when he was carried to defendant's hospital, testified to his opinion that it would be the best judgment of any doctor that there was some inflammatory thing inside; that "to relieve that inflammation you would have to go on the inside to do it. * * * If the pain was in what you call the lower left bowel, that would be the lower part of the abdomen, and if that was the tenderest spot, that would undoubtedly indicate that was the spot to go to in order to find the trouble." These opinions on the part of Dr. Cunningham Wilson were corroborated by Drs. Hogan, Talley, Mason, J. R. Argo, and the defendant Carraway.

The brief quotes the original opinion as follows:

"He (defendant) found the appendix and other tangible organs to be normal, but there was an exudation of a straw coloredfluid (italics supplied by plaintiff's attorney) from the incisions made and this indicated inflammation."

The brief then quotes the hospital chart, in the defendant's handwriting, as follows:

"Left rectus incision, abdominal organs examined, nothing abnormal found except quantity of clear fluid." (Italics again supplied.)

The brief asserts that "this clear fluid — not straw colored — indicated an absence of any trouble in the abdominal cavity." But the statement of Dr. Moynihan, "Abdominal operations," is that "This œdema (swelling produced by watery fluid. Webster's Internat. Dict.) is a sure indication of the presence of a high degree of inflammation and that pus is present in the part beneath; and it is evidence that the incision is being made in the proper place." Dr. J. R. Argo of Birmingham testified:

"This incision was made in the left side, down to the cavity, and when we opened the abdomen, why there was a straw colored fluid that came out, which indicated that he had some trouble there, which indicated an inflammatory condition."

Dr. Carraway testified to the same effect. Dr. Cunningham Wilson testified:

"In making a left rectus incision, and nothing abnormal is found except a quantity of clear fluid, that would indicate that there was some inflammatory condition inside."

Our mind was not then fixed on the difference between "clear fluid" and "straw colored fluid," if any, and we now prefer to follow the opinion of distinguished medical and surgical authority to the effect that either sort of fluid in any considerable quantity in the abdomen indicates inflammation.

Appellee on this application complains that the original opinion is mistaken in its assertion that plaintiff speaks of the third incision "as if it had been made into the kidney." On page 12 of the original brief appellee speaks of "the operation on the kidneys." But this matter is not considered to be of any importance at this time, and was mentioned in the original opinion for the reason that, by questions addressed to Dr. John W. Wilson, appellee seemed to dwell upon the fact that appellee had no disease of the kidneys, thus in effect, though not intentionally, it may be conceded, opening the way to the inference that appellant blundered into an operation for, if not on, the kidneys. The evidence is clear to the effect that the only purpose of the incision into the back was, not to operate on the kidneys, but to provide for drainage from the region of the swelling in the abdominal wall, and this practice had the approval of the expert witnesses who testified on that subject. Evidently appellant sought to avoid any inference of that character by asking the special charge on that subject to which we referred in the original opinion, and it was in that connection that we have heretofore referred to this subject.

Appellee complains that the court has denied relief when, so far as concerns the swelling which developed in or on his side above his hip, he was entitled to compensation for the pain he was caused to endure on that account by reason of appellant's undue delay in opening that swelling so as to allow the escape of pus therein accumulated. For that swelling and the condition of the hip bone, appellee's witness Dr. John W. Wilson acquits appellant of any responsibility. The only complaint we hear as to that is that appellant, after his attention had been repeatedly called to the swelling by one of the nurses — who did not testify — delayed too long to open it. There is no expert or other opinion that appellant waited longer than he ought. Appellee's first operation was on November 30th. The evidence showed — without dispute, as we now recall it — that the only external evidence of the location of appellee's trouble at that time was to be seen in the groin or lower left abdomen. Dr. Carraway's testimony is that he thought — meaning his best recollection, as we understand — that he opened the swelling on January 10th, and that until then he was undecided as to what caused the swelling. This is the evidence bearing upon this point. We feel reasonably sure that appellee, a schoolboy 17 years of age, is not a medical expert. Nor are we. Taking what fair view of this matter we can, we find in it no sufficient ground for the verdict, and the assessment of damages would indicate very strongly that damages were not assessed on this account alone.

Speaking to the case in general, appellee refers to Johnson v. Winston, 68 Neb. 425, 94 N.W. 607, where the commissioner, writing for the court, observed that "we cannot overlook the well-known fact that in actions of this kind [malpractice] it is always difficult to obtain professional testimony at all." We presume the commissioner intended to express the opinion that it is hard to get medical men to testify against their brethren of the profession. We need express no opinion as to that. The fact in the present case is that we find in the testimony of the six surgeons who testified for defendant no reason to doubt their candor or the validity of their opinions, nor have we any doubt that they correctly understood the facts when testifying in the cause.

There will be no denial by the court that the case was one proper for submission to the jury in the first place. Under the practice in this state, a scintilla of evidence in support of plaintiff's case suffices to take it to the jury, and requires that the judge should refuse the general charge for the defendant, notwithstanding the great weight of the evidence is on the side of the defendant. But it is within the power and duty of the presiding judge in such case to prevent injustice, and this court exercises the same power and is bound by the same duty, making due allowance for the necessary difference in the presentation of causes in this and in the trial courts. This is not to say that the evidence in support of appellee's case was no more than a gleam, a spark, a scintilla, but it is to say that, notwithstanding the trial judge properly refused the general charge, this court will see that justice is done as it is due to be by the triers of fact as well as the judge declaring the law. We have heretofore cited our cases in this line, and that might well suffice to dispose of this appeal. However, we quote from some like cases in other jurisdictions — cases of alleged malpractice. In Champion v. Kieth,17 Okl. 204, 87 P. 845, the Supreme Court of Oklahoma said:

"In the trial of cases such as the one before us, courts should proceed with great care, as frequently there is liability that prejudice will creep into the minds of the jurors, and oft times a jury is liable to arrive at unwarranted conclusions."

In English v. Free, 205 Pa. 624, 55 A. 777, the court said: "A surgeon is not an insurer of his patients. We think the court below was right in entering a nonsuit" — this, in a case in which the defendant incorrectly diagnosed a dislocation of the femur, the court saying, "this injury is such that it is very difficult to detect its exact character." Such was the case here.

In Kernodle v. Elder, 23 Okl. 743, 102 P. 138, the court quoted from Williams v. Poppleton, 3 Or. 139, as follows:

"A physician is obliged by his calling constantly to * * * undertake difficult cases, and to perform critical operations in the presence of those who are ignorant and credulous. He is liable to have his acts misjudged, his motives suspected, and the truth colored or distorted even where there are no dishonest intentions on the part of his accusers."

In Ewing v. Goode (C. C.) 78 F. 442, Taft. Circuit Judge, quoted with approval from an English case (Hancke v. Hooper, 7 Car. P. 81) as follows:

"A surgeon is responsible for an injury done to a patient through the want of proper skill in his apprentice; but, in an action against him, the plaintiff must show that the injury was produced by such want of skill, and it is not to be inferred."

And further he wrote:

"A physician is not a warrantor of cures. If the maxim, 'res ipsa loquitur' were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the 'ills that flesh is heir to.' "

In Fausette v. Grim, 193 Mo. App. 585, 186 S.W. 1177, in which defendant operated for appendicitis on a pregnant woman, the court held this language:

"The charge is that defendants negligently advised an operation. In this kind of a case plaintiff must not only prove that the operation was unnecessary but also that the operation was one so palpably unnecessary that a surgeon of ordinary care and skill would not have advised it. If conditions were such as to lead surgeons of ordinary care and skill to think an operation was necessary and defendants, in the honest exercise of their best judgment, thought an operation was proper, then defendants would not be liable even if it turned out afterwards that they were mistaken in their diagnosis" — citing cases.

In Staloch v. Holm, 100 Minn. 276, 111 N.W. 264, 9 L.R.A. (N.S.) 712, the court said:

"He [the surgeon] is faced by the eccentricities of medical experts. We have no inclination to share in the prevalent and intemperate denunciation of their unreliability and veniality. But if every verdict mulcting a reputable physician in damages must be sustained if any of his professional brethren can be induced to swear that, assuming the testimony of the family and friends of the patient to be true, the physician had made a mistake of judgment or had been guilty of unscientific practice, then the profession would be one [in] which 'unmerciful disaster follows fast and follows faster.' "

Many other cases to the same effect might be cited and quoted. We had thought it unnecessary in the original opinion to do more than cite our own cases of Robinson v. Crotwell,175 Ala. 197, 57 So. 23, and Moore v. Smith, 215 Ala. 595,111 So. 918. The courts everywhere have thought it necessary to exercise great care in order to protect honest and capable medical men from being mulcted by the verdict of jurors who know little or nothing of the subject they are required to consider and determine in our system of jurisprudence, at the same time administering the rule of liability declared by this court in cases heretofore decided.

It is the judgment of the court that the rehearing be denied.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.