holding that recovery for pain and suffering of deceased allegedly caused by the negligence of doctor can only be had in suit by personal representative and not by next of kin or heirs at lawSummary of this case from Phillips ex Rel. Phillips v. Monroe County
January 14, 1935.
To establish liability under wrongful death statute, negligence complained of must be proximate or at least directly contributing cause of death, and must be proved as a reasonable probability (Code 1930, section 510).
2. PHYSICIANS AND SURGEONS.
Evidence that doctor was negligent in treating deceased for gunshot wound held insufficient to establish liability of doctor for wrongful death of deceased from pulmonary embolism (Code 1930, section 510).
Recovery for pain and suffering of deceased probably caused by alleged negligence of doctor in treating deceased between time of gunshot wound and deceased's death could be had only in suit by personal representative and not by next of kin or heirs at law (Code 1930, section 1712).
4. PHYSICIANS AND SURGEONS.
Where deceased who died within eleven days of receiving gunshot wound could not have recovered and rendered any services within eleven-day period, although treatment of wound had been proper, doctor alleged to have treated wound negligently was not liable at common law for loss of services, since loss was referable to original gunshot wound to which doctor was not party.
APPEAL from the Circuit Court of Bolivar County.
John T. Smith, of Cleveland, for appellants.
We do not think that a physician can sit idly by and permit symptoms to develop that would put a physician on notice and take no active notice of such symptoms, and then come into court and say that he used his best judgment and be exonerated on these grounds when it is apparent that he did not so do. At all events this would be a question for the jury.
It is only in cases where the proof for the plaintiff, when it tends to sustain the issue, is so unreasonable and contradictory within itself that it cannot be reasonably accepted as being true, that a peremptory instruction should be granted. This is rarely the case. Wherever reasonable men may differ about which party has testified to the truth, the judge must submit the cause to the jury.
There was causal connection.
The proof offered in this case is sufficient to show that the damages complained of proximately resulted from the negligence of appellee. To make a properly skillful and careful diagnosis of the trouble of a patient is one of the fundamental duties of a physician, and if he fails to bring to that diagnosis the proper degree of skill or care he must answer to the patient for the damages thus caused just as readily as he must answer for the application of improper treatment.
21 R.C.L., pp. 387-8; Manser v. Collins, 69 Kan. 290, 76 P. 851; Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760; Burton v. Neill, 140 Iowa, 141, 118 N.W. 302; Bonnet v. Foote, 47 Colo. 282, 107 P. 252; Lewis v. Dwinell, 84 Me. 497, 24 A. 945; Rogers v. Kee, 171 Mich. 551, 137 N.W. 260; Hoffman v. Watkins, 89 Wn. 661, 155 P. 159; 93 Am. St. Rep. 659; Pepke v. Grace Hospital, 90 N.W. 278; Williams v. Poppleton, 3 Or. 139; Barker v. Lane, 23 R.I. 224, 49 A. 963; DuBois v. Decker, 130 N.Y. 325, 27 Am. St. Rep. 529, 29 N.E. 313; West v. Martin, 31 Mo. 375, 80 Am. Dec. 107; Johnson v. Winston, 94 N.W. 607. Brewer Montgomery, of Clarksdale, for appellee.
If a physician brings to his patient care, skill and knowledge, he is not liable to him for damages resulting from a bona fide error in judgment of which he may be guilty.
20 R.C.L. 391, sec. 35; Carpenter v. Walker, 54 So. 60-1; Barfield v. South Highlands Infirmary et al., 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097; Moore et al. v. Smith, 111 So. 918-920; Carraway v. Graham, 118 So. 807; Sellers v. Noah, 95 So. 167; Gray v. McDermott, 64 S.W.2d 94.
Appellants are the next of kin of a decedent who was accidentally shot and who died eleven days thereafter. Appellee is the physician to whom the wounded person was immediately brought. The wound extended from the wrist to a point near the elbow, and it then appeared to the physician to be a mere surface wound without penetration, and was treated as such. The physician visited the patient daily, and four days after the wound the physician came to the conclusion that some trouble existed not theretofore discovered by him, and the patient was taken to a hospital. There an operation was performed, and it was found that gun wadding and some of the shot had been imbedded in the wound. These were removed, but the patient died seven days later. This suit was thereafter instituted against the physician who first treated the patient; the allegations of the declaration being that the physician did not devote that skill and care required by law in such cases and that this negligence was the cause or a contributing cause of the death. The court upon the trial granted a peremptory instruction for the defendant therein.
It is admitted that the patient died of pulmonary embolism. Two physicians, and only two, were introduced; and, as we read their testimony, and interpreting it as best we can, an embolus in cases of wounds is, in simple terms, a product of coagulation of the blood, a blood clot, which, generally having its origin in the injury which has severed small blood vessels, finds its way into a vein and proceeding thence in the blood stream towards and into the heart, gathering particles as it moves, is propelled by the heart into an artery leading to the lungs, and becoming large enough, blocks a main pulmonary artery, thus causing death, and this is called pulmonary embolism.
Both the physicians gave it as their opinion that as a probability the embolus in such a case comes into its primal existence within a very short time after the infliction of the wound, although it might be some time later before the results of it would appear symptomatically. One of them stated that, as to this particular case, the infections or poisons that might or did become present on account of the wound or the treatment thereof would have little and nothing substantially to do either with the origin or the development or the final results of an embolus; while the other stated that infections or poisons might possibly be contributors to the mischief of the embolus, but a summary of his evidence seems to be that this was only a possibility, not a probability.
It is essential as an element of liability under our wrongful death statute (Code 1930, section 510) that the negligence complained of shall be the proximate cause, or at least a directly contributing cause, of the death which is the subject of the suit. The negligence, and not something else, must have been the cause which produced or directly contributed to the death. Hamel v. Southern Ry. Co., 113 Miss. 344, 358, 74 So. 276. And, as in other cases, this essential element must be proved as a reasonable probability. To prove no more than that it was a possibility is not a sufficient foundation for the support of a verdict or judgment.
The evidence therefore is not sufficient to authorize a judgment under our statute which gives an action "whenever the death of any person shall be caused by any real wrongful or negligent act or omission;" for the reason, as stated, that the proof fails to show that the death here was proximately caused by the asserted negligence. Kirkpatrick v. Ferguson-Palmer Co., 116 Miss. 874, 77 So. 803. And as to any pain and suffering of the deceased endured by him between the injury and death and which may be shown was probably caused by the asserted negligence, that is an item which must be recovered, if at all, under section 1712, Code 1930, at a suit by the personal representative, not by the next of kin or heirs at law. And finally as to any recovery for loss of services for the eleven days between the injury and death and for which recovery could be had at common law without the aid of statute (Natchez, etc., R. Co. v. Cook, 63 Miss. 38), that loss is to be referred to the original gunshot wound, to which appellee was not a party, for under all the evidence the decedent would not so far have recovered within that short time as to have rendered any services, although the treatment of his wound had been beyond the possibility of criticism.