Summary
In Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760 (1930), an oculist was sued for alleged negligence in the removal of a cataract from plaintiff's eye. Plaintiff offered evidence to show that defendant had performed cataract operations on other patients which resulted in each patient losing the eye.
Summary of this case from Darnaby v. SundstromOpinion
April 7, 1930.
1. JUROR: Employee of Insurance Company. A talesman who on his voir dire examination testified that he had been employed by an indemnity insurance company and had looked after a good deal of personal injury cases, and might have acquired some sort of prejudice against such claims, but was not shown to have ever had any experience in adjusting claims of the kind on trial; that he didn't know that his experience would affect his judgment at all; that he would try to do his best, and that he would be guided by the evidence, was not so prejudiced as to require the court to sustain appellant's peremptory challenge, but was qualified.
2. NEGLIGENCE: Instructions: Surgeon: Failure to Require Care and Skill. Where the petition charges that defendant, a physician, in removing a ripe cataract from plaintiff's eye, negligently failed to cleanse or sterilize his hands and instruments and negligently failed to cleanse the eye, eyelids or eyelashes, either before or after the operation, whereby the eye became infected, an instruction telling the jury that before they can find against defendant "they must find that he was negligent in one or more particulars submitted to you by other instructions," did not fail to require them to find that defendant exercised care and skill, where the instructions for plaintiff directed them to the facts in issue and told them that if defendant failed in certain particulars to sterilize and antiseptically cleanse the parts and "failed to exercise ordinary care and skill, and that such failure to exercise ordinary care and skill caused such infection" they should find for plaintiff, and correctly defined ordinary skill. The instruction for defendant that they must find him "negligent" necessarily meant that they must find that he did not exercise ordinary care and skill.
3. EVIDENCE: Lack of Care in Other Cases. Where the issue before the jury is whether the defendant physician exercised proper care and skill in operating on plaintiff's eye, testimony that he did not use care and skill in operating on the eyes of other patients is not relevant.
4. ____: Operation on Other Eye. A plaintiff who knows nothing about surgery and who sues for injury to her eye resulting from infection, alleged to be due to the defendant physician's failure to sterilize his instruments before removing a cataract and to antiseptically cleanse the eye and eyelashes, is not entitled to show by her own testimony the manner and method by which the antiseptic and sterilizing processes were performed in a subsequent operation on her other eye.
5. WITNESSES: Failure to Produce. A party has no right to complain of the opposing party's failure to produce witnesses who are equally available to both parties.
6. PLEADING: Striking Out: How Preserved for Review. The action of the trial court in striking out parts of plaintiff's petition is not for consideration on her appeal unless mentioned in her motion for a new trial.
Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.
AFFIRMED.
Earl M. Pirkey for appellant.
(1) It is reversible error to give an incorrect instruction at the request of the successful litigant or of the court's own motion which conflicts with a correct instruction given at the instance of the losing party. Mansur-Tibbetts Imp. Co. v. Ritchie, 143 Mo. 612; State ex rel. Coal Coke Co. v. Ellison, 270 Mo. 645; Easton-Taylor Trust Co. v. Loker, 205 S.W. 87; Flintjer v. Kansas City, 204 S.W. 951; Martmowsky v. Hannibal, 35 Mo. App. 70; Desnoyers Shoe Co. v. Lisman, 85 Mo. App. 345; Sheperd v. Transit Co., 189 Mo. 373; Wallack v. Transit Co., 123 Mo. App. 167; Porter v. Ry. Co., 199 Mo. 83. Instruction 4 for defendant is erroneous because it conflicts with Instruction 1, and because he may have exercised ordinary care but not ordinary skill. (2) A juror who admits any bias or prejudice should be excused. He should be superior even to a suspicion of partiality. Theobald v. Transit Co., 191 Mo. 428; Billmeyer v. Transit Co., 108 Mo. App. 6; Burton v. Phillips, 7 S.W.2d 713; McFall v. Ry. Co., 185 S.W. 1158. The fact that a juror says that he can and will try the case impartially does not qualify him. Theobald v. Transit Co., 191 Mo. 418; Vessels v. Light Power Co., 219 S.W. 86; Schwartzmann v. Fire Ins. Co., 2 S.W.2d 594; Gibney v. Transit Co., 204 Mo. 721. (3) Defendant testified that he had performed one hundred and fifty cataract operations and out of the lot he had but one bad result. Plaintiff undertook to show that he had other bad results, and this was excluded by the court, and this was error. (4) Plaintiff attempted to show the treatment following when her left eye was operated on for cataract successfully; that when the left eye was operated on, immediately before it was operated on, the left eye and eye brow adjoining the parts of the eye were washed with soap and water, and then with an antiseptic wash; that the eye was flushed out with an antiseptic wash; that all instruments used in the operation were disinfected immediately before the operation; that the doctors scrubbed their hands with soap and water thoroughly and washed them in a disinfecting solution, and that her gown and everything that she had were taken out of the packages that had been disinfected. The answer alleged that defendant's operation and treatment of plaintiff were in accordance with accepted medical knowledge and skill, and the above evidence was admissible and the court erred in excluding it. (5) The court prevented appellant's counsel from commenting on the failure of respondent to bring nurses to the trial of the case. The plaintiff being a mere patient did not know the nurses; she had no access to the records; a patient cannot see the hospital records, and she did not have the opportunity to learn the names of the nurses as respondent did and therefore it was proper to comment on respondent's failure to bring them.
Woodward Evans for respondent.
(1) Instruction 4, does not conflict with plaintiff's Instruction. It is in all respects consistent, and correctly submitted defendant's side of the case. Grainger v. Still, 187 Mo. 213; Reeves v. Lutz, 179 Mo. App. 61; Krinard v. Westerman, 279 Mo. 680; Vanhooser v. Berghoff, 90 Mo. 487, 27 A.L.R. 1250, 37 L.R.A. 830. The terms "negligent" or "negligence" apply equally as well to the failure to use ordinary skill as to the failure to use ordinary care. Wencker v. Railroad Co., 169 Mo. 592; St. L. St. P. Packet Co. v. Bridge Co., 31 F. 756. (2) The trial court did not err in overruling the challenge to the juror. Nothing said by the prospective juror would tend to disqualify him or to show any bias or prejudice against the plaintiff's case. Parlon v. Wells, 17 S.W.2d 528. (3) The trial court did not err in excluding certain testimony, which plaintiff's counsel sought to introduce. This testimony did not tend to prove or disprove any issue in the case; nor was it justified from the standpoint of impeaching evidence. (4) The court properly sustained the objection to plaintiff's proposed testimony as to the methods used during the operation on her other eye. (a) Such testimony did not tend to prove any issue in the case. (b) The witness (plaintiff) was a layman, not a physician specializing in treatment and diseases of the eye, and, therefore, was not competent to testify as to the customary methods used by physicians in such cases. 21 R.C.L. 405, sec. 47. (5) The court properly sustained the objection to appellant's counsel's comment on respondent's failure to bring nurses to the trial as witnesses. There is nothing in the record to show that the alleged witnesses were not equally available to both parties, nor that respondent was particularly acquainted with their testimony and that appellant was ignorant thereof. It does not show that the alleged witnesses were under the control of, or in the employ of, respondent. Atkinson v. Rys. Co., 286 Mo. 634.
The defendant was a physician and the plaintiff was his patient. In November, 1923, he performed an operation upon her right eye to remove cataract. After the operation her eye became infected and her eyesight, already almost gone on account of the cataract, was not restored. She brought this suit September 20, 1924, to recover damages caused by defendant's alleged negligence and lack of skill in connection with the operation.
The allegations of negligence are that the defendant unnecessarily cut and incised and punctured the parts adjoining the crystalline lens, and negligently failed to cleanse or have cleansed and sterilized his hands and instruments used in the operation, and negligently failed to cleanse or have cleansed the eye, eyelids, eyelashes and other parts adjoining the said eye or the rest of her face, either before or after said operation.
The answer of the defendant admitted the relation of patient and physician, the operation, the infection which followed the operation, denied that defendant was negligent in any manner in handling the case, and alleged that the operation and treatment were in accordance with the accepted medical knowledge, learning and skill.
Both eyes of the plaintiff were infected with cataract. On the right eye the cataract was "ripe," which means ready for the operation; on the left eye it was not ripe. Afterwards the left eye was operated upon successfully by another physician.
The plaintiff's testimony of the defendant's negligence was largely negative. She did not see him cleanse and scrub his hands. Defendant and Dr. Ehresmann, his assistant, testified to the sterilization of the instruments, their hands, and the washing of the plaintiff's face and eye with boric acid, and other treatment.
The defendant, also, offered evidence to show that absolute sterility of the conjunctiva sac was impossible. That certain germs, the names of which appear in the record, are always present in a normal eye, and it is not possible always to eradicate them for the purpose of such operation. Defendant also offered evidence to show that one to three per cent of operations for cataract fail on account of subsequent infection. Dr. Barck had graduated at Freiburg, Germany, in 1880, came to this country in 1883, had been practicing in St. Louis since that time. He had been lecturer on ophthmalogy at the St. Louis University; he had been back to Europe several times and visited the universities and clinics of London, Utrecht, Paris, Budapest, and many in Germany. Since St. John's Hospital was built in 1912 he had performed 350 operations. Of those 150 were cataract operations, and of the 150 in only one did infection take place, and that was this case. He explained at length all his precautions to prevent infection. He first examined the patient to find out if she was in a normal state of good health. He said "she was a poor patient; she didn't keep quiet, and didn't look down nicely," which it seems is necessary in an operation of that kind.
Several other physicians testified for the defendant that the method which he pursued in the case was an approved method.
The plaintiff introduced only one physician as a witness. He was a general practitioner and knew very little about the eye or operations for cataract. On this evidence the jury returned a verdict for defendant, judgment followed and the plaintiff appealed.
I. The appellant assigns error to the action of the trial court in overruling her challenge to juror number 15, on the ground that he was prejudiced and incompetent to sit. Juror's Juror 15 had been employed in some capacity by Qualifications. the United States Fidelity Guaranty Company, a life insurance company. He testified on voir dire that he had a good deal of personal injury work to look after; that he sometimes settled personal injury claims and found claims that were unjust. Then these questions were asked and these answers given by the juror:
"Q. Perhaps in hearing a case of this character, these strong impressions that have been made would remain with you and might unintentionally affect your judgment in a case of this kind, would it not? A. I don't know as it should affect it at all."
Then after the juror had said that he might naturally form opinions from his experience, that he wouldn't want to, he was asked if his experience would affect his deliberations. He answered: "It may; I don't think so; I would try to do my best."
Then the following questions and answers were given:
"Q. . . . You are afraid it might have some effect of that kind, unintentionally, of course? A. I don't know. I think I could give a fair trial. I wouldn't want to say. I would have to be guided by the evidence, of course.
"Q. Certainly, you would try to do that? A. Yes.
"Q. But, at the same time, these past experiences would probably have some effect in your deliberations? A. It may demand a certain percentage of evidence.
"Q. More than otherwise? A. To show me.
"Q. It might require more evidence than if you hadn't had these experiences, is that what you mean? A. I don't know whether it would be that exactly. I would have to see plain evidence, of course."
The prejudice of a prospective juror because of his experience was discussed in Parlon v. Wells, 17 S.W.2d 528. In the present case, all this juror said was that in his experience in his connection with the liability insurance, where he became acquainted with the personal injury cases, he might possibly have acquired some sort of prejudice against claims in such cases. It was not shown that he had ever had any experience in adjusting a claim of the kind presented here, or that he had ever had any knowledge of one. Naturally in his business his experience was with injuries caused by violence in the negligent operation of some mechanism. He said he didn't know that his experience would affect his judgment at all; he would try to do his best. "I would have to be guided by the evidence of course." He didn't know whether his experience was such that it would require more evidence (presumably) to justify a finding for the plaintiff. He "would have to see plain evidence of course." The answers of the juror showed that he was honestly endeavoring to reveal the exact condition of his mind in relation to the case. But his positive statement that he would be "guided by the evidence, of course" is all that could be expected of any juror. All this notwithstanding the very shrewd and adroit examination by plaintiff's counsel endeavoring to get him to say that he would be influenced by his experience rather than by the evidence. We think he was properly qualified. His examination guided the plaintiff in making her peremptory challenges which included this particular juror, and he did not sit in the case.
II. The plaintiff complains of Instruction 4 given on the part of the defendant. It is as follows:
"Gentlemen of the jury, you are instructed that under the law a physician in treating a case is not held as an insurer of favorable results. He is only required to use that Negligence: degree of care and skill possessed by ordinarily Care and careful and skillful physicians at that time and in Skill. that community and in that particular branch of the profession in which he practices.
"Therefore, the mere fact that the operation upon the plaintiff in this case may not have been successful is not of itself sufficient to warrant you in finding a verdict against the doctor, and before you can find a verdict against the doctor you must find that he was negligent in one or more particulars submitted to you by other instructions. If he was not negligent in any of these particulars it becomes your duty to return a verdict in favor of Doctor Barck, even though you find that plaintiff did not recover her sight by reason of an infection."
To the action of the court in giving said Instruction 4 plaintiff duly excepted at the time.
The point made by appellant on this instruction is that the jury was authorized to find a verdict for the defendant if he was " negligent in any one or more of the particulars submitted to you by other instructions." Whereas, the defendant was not only charged with the lack of care, but with the lack of skill.
At the instance of the plaintiff the court instructed the jury as to the facts in issue, and then directed:
"If the jury further find from the evidence that while defendant so had charge of plaintiff as an oculist" that he failed in certain particulars to sterilize and antiseptically cleanse as claimed, and "failed to exercise ordinary care and skill, and that such failure to exercise ordinary care and skill directly caused such infection, loss of sight, etc., they should find for the plaintiff.
Instruction 2 given for the plaintiff defines ordinary skill as such skill as would ordinarily be exercised under the same or similar circumstances by an ordinarily skillful oculist.
Instruction 3 given for plaintiff defines "ordinary care" as meaning "such care as would ordinarily be exercised under the same or similar circumstances by an ordinarily careful oculist . . . engaged in practice."
The first part of Instruction 4 objected to, directs the jury that the defendant was required to use only that degree of care and skill possessed by ordinarily skillful and careful physicians at the time, etc., defining care and skill in much the same way as instructions 2 and 3, given on behalf of the plaintiff. Then in Instruction 4 the jury is directed that they could not find a verdict against the defendant unless they found he was negligent in one or more particulars submitted to you by other instructions. Plaintiff argues that he could be negligent only by failing to use ordinary care, while defendant claims he could also be negligent if he failed to use ordinary skill, and in directing the jury to find for the defendant unless he was negligent in one or more of the particulars mentioned in other instructions, means negligence in failing to exercise ordinary care or in failing to exercise ordinary skill. The use of the word "instructions," in the plural refers to all the other instructions, and the words "care and skill" are used together in all of them except in Instruction 3, in defining ordinary care. It will be noted that the petition does not allege, nor is it claimed anywhere in the trial, that Dr. Barck was lacking in ordinary skill. He possessed a high reputation as a skillful and successful specialist in diseases of the eye. Then what would his failure to exercise skill be called? It is not claimed that he wantonly and purposely failed to use his skill. The only term you could possibly apply to it would be negligence. He possessed skill and negligently failed to use it.
Further, the operation itself was successful. It is not claimed otherwise. The only trouble was the subsequent infection which could not come from any lack of skill in the performance of the operation. It could come only from negligence in failing to use care or skill in sterilizing the subject and all the instruments and appliances, or from the presence of disease germs which ordinarily careful and skill preparation would not eradicate.
This court in Wencker v. M.K. T. Ry. Co., 169 Mo. l.c. 598, quotes with approval a definition of actionable negligence: "The neglect of the use of ordinary care or skill toward a person to whom the defendant owes the duty of observing ordinary care and skill."
The defendant owed the plaintiff a duty to exercise ordinary care and ordinary skill, and failure to exercise either was negligence. This court said in Swineford v. Franklin County, 73 Mo. l.c. 283: "Negligence is an omission of duty. Where there is no duty, there can be no negligence."
Since the defendant owed the plaintiff a duty to exercise ordinary care and skill, his failure to exercise either would be negligence. Even if he was incompetent and attempted an operation which he knew he could not perform, it would be negligence. It was said in Jackson v. Bell Telephone Co., 219 S.W. 655, l.c. 658: "It would be the greatest carelessness for a wholly inexperienced person, without previous instruction from competent persons, to undertake to do so" (that is, operate an automobile).
So the term "negligence" not only covers a lack of care, but the failure to exercise skill which the person possesses, or the attempt to exercise skill which he knows he does not possess.
We think, therefore, that the giving of Instruction 4 could not mislead the jury.
III. While the plaintiff was on the stand she was asked if she knew whether Dr. Barck had performed any other operations that morning and she answered yes, and that he had said it Evidence. was a cataract operation. Then plaintiff's counsel asked if the doctor told her the result of the operation. That was objected to, the objection sustained and appellant assigns error to that ruling.
Dr. Barck had not been asked about that matter. It was not claimed that he was lacking in skill and there was no allegation to that effect. It could not be used to impeach anything he said because he had not testified. On cross-examination he was asked, apparently, about the same matter this way: "Was there not another man there at the same time that came over from Illinois that you operated on for cataract that lost his eye?"
The court sustained the defendant's objection to the evidence, and then plaintiff's counsel offered to show that a man was operated on by defendant about the same time he operated on Mrs. Rothschild and the man lost his eye, and he operated on two or three other cases about the same time and they lost their eyes. Objection to that was sustained and appellant assigns error to the ruling. Lack of skill was not alleged in plaintiff's petition, and there was no issue to which it was relevant. If Dr. Barck was so unfortunate as to perform unsuccessful operations on other patients it would not necessarily follow that he did it unskillfully. There are various other causes why it might be unsuccessful, as in case of a patient whose age is so advanced that the operation is the last desperate chance. Even if it would be competent to show that he had used a lack of care or skill in operations on other patients it would not be relevant in this case. The issue before the jury in this case was whether Dr. Barck exercised proper care and skill in operating upon the plaintiff. His reputation and ability were not in issue.
While the plaintiff was on the stand her counsel offered to show, in the operation on the left eye, which came after the operation on the right eye, the manner and method by which the antiseptic and sterilizing processes were performed. The court sustained an objection to that testimony. The testimony given by the plaintiff on this subject, who knew nothing about such surgery, would not tend to show that the method employed on the other eye was the proper or approved method, or any better than the one the defendant employed in operating on the right eye.
Appellant assigns error to the action of the court in stopping him in his argument when he was attempting to say that another operation on the left eye had been a success. This sort of argument was improper for the reason just mentioned.
Further error is assigned because the court sustained an objection to the argument of plaintiff's counsel in commenting upon the respondent's failure to bring the hospital nurses as witnesses to the trial. A party has no right to Absent complain of the opposing party's failure to bring Witnesses. witnesses who are equally available to both parties. There is nothing in this record to show that the nurses could not have been summoned as witnesses for plaintiff as well as for the defendant. They were not shown to be under the control of the defendant, or that plaintiff was unable to ascertain their names or locations.
Appellant assigns error to the action of the trial court in striking out parts of the plaintiff's petition, Striking Out several of such motions being overruled. In three Pleading. instances the motions were sustained. The appellant, however, failed to mention the action of the court in that matter in her motion for new trial, hence they are not for our consideration.
The judgment is affirmed. All concur.