Hunner v. Stevenson

⁵³ Boyd, C. J., delivered the opinion of the Court. The declaration filed in this case by the appellees against the appellant contains two counts. The first alleges that the defendant (appellant), undertook for a fee or reward tó be paid him to attend and treat some kidney trouble from which the female plaintiff was suffering; that the defendant (appellant), attended and treated her negligently, carelessly and unskillfully, whereby she is seriously and permanently afflicted, etc. The second count alleges that the defendant was a practicing physician and surgeon, holding himself out as a specialist in the treatment and cure of kidney trouble and disturbance, and then, after some formal allegations as to his employment, etc., it is further alleged, “and the plaintiffs say that the defendant, in the treatment and operation of the female plaintiff in the premises, did not treat her and operate upon her with care, diligence and skill, but treated and operated upon her in the premises, negligently, carelessly and unskillfully, in consequence whereof a considerable quantity of gauze or other foreign substance remained and continued in the abdominal cavity of the female plaintiff after said treatment and operation, and after the incision and wounds made and occurring during such treatment and operation were sewed up and closed by the defendant, or under his direction, and by his authority in the premises, in consequence whereof grave and serious physical trouble and disturbance/and mental anxiety and distress resulted,” etc. The defendant filed the general issue plea and afterwards a second plea which was demurred to, and the demurrer was sustained. The trial resulted in a verdict in favor of the plaintiffs for one thousand dollars, and this appeal was taken from the judgment entered thereon.

There are twenty-one bills of exception in tlie record, — the first twenty presenting rulings on the admissibility of evidence, and the last one the rulings on the prayers. The plaintiffs offered two prayers which were granted, and the defendant offered seventeen, all of which were rejected excepting the fourth. The defendant also filed special exceptions to the plaintiffs’ first prayer. ⁵⁴ The operation by Dr. Hunner on Mrs. Stevenson wass described by him as “the removal of the lower third of the right kidney and drainage of an abscess around the'kidney laying between the kidney and the bowel.” The operation was performed on June 20th, 1910, — she having gone to the hospital on the 15th of June. She was a patient of Dr. Madara who lived near her home in Caroline County.

Dr. Madara discovered that she had some-kidney trouble and sent her to Dr. •Julius Eriedenwald of Baltimore. The latter’s diagnosis was stone in the kidney and he arranged to have Dr. Hunner operate on Mrs. Stevenson because he “believed him to be the very best man in Baltimore for this kind of work.” Dr. Eriedenwald also arranged for the patient to go to the Union Protestant Infirmary, and she entered the women’s ward of that hospital, paying $10.00 a week. She did not see Dr. Hunner until the day after she entered the hospital, when he examined her kidneys and made certain tests in addition to the X-Bay which had been previously taken. She entered the hospital on Wednesday and was operated on on the following Monday.

There is nothing in the record to suggest that the operation was not skillfully performed, but on the contrary counsel for the plaintiff stated at the trial, “we have no fault to find with the skillfulness of the operation” and some of the most prominent surgeons in Baltimore — it would not be too much to say, in this country — ‘show by their testimony that it was regarded as one of the most remarkable operations that had ever been successfully performed. If the plaintiffs relied alone on alleged negligence or want of proper care and skill in the performance of the operation, we could have no hesitation in holding that there was not legally sufficient evidence to justify the lower Court in submitting the case to the jury. But the testimony shows that about five weeks after the operation was performed, Mrs. Stevenson returned to her home and on September 9th a piece of gauze which had been left in her was removed by Dr. Madara. A week after that some rubberized silk was taken out by Mr. Stevenson, the ⁵⁵ husbands.

The evidence shows that at the time of the operation what is spoken of as a “cigarette drain” was inserted within the kidney pelvis, and that it led therefrom to the surface of the wound. There were also two strips of gauze packed in the abscess cavity which protruded out of the wound. The “cigarette drain” was made of gauze rolled into shape' of a cigarette, which was covered with rubberized silk, — so as to prevent the substance drained from getting into the cavity in which the drain was placed. The end of that drain and of the two gauze strips protruded several inches out of the wound, and a stitch was taken in each corner of the incision — the intervening space in the incision being left open.

The outer dressings and bandages were applied to the wound of the patient who was then taken from the operating room to her bed in the ward. Mrs. Stevenson testified that she left the hospital about the 20th of July. She said that the defendant examined the wound the day before she left the hospital and told her she was ready to leave and that her husband could dress the wound but that she should call in her family physician occasionally to see that it was all right. She asked Dr. Hunner if he thought the wound would continue to drain and he replied : “I don’t know!

Probably it will for about a month.” Dr. Madara testified that after she returned home he found that the wound was still draining but was informed that Mr. Stevenson would be allowed to dress it. He said he saw her “a couple of times a week,” and when he would go there he would dress the wound himself. On September 9th they telephoned to him that something was coming out of the wound. The next day he saw her and found a piece of gauze protruding from the wound.

He said: “It was out probably an inch or two, so I took hold of it with a pair of forceps and made traction on it and I kept drawing it out, and I had to make pretty strong traction in some places to get it out. "When I had taken about a foot and a half or two feet of it out, it kind of broke off. I felt sure there was some of it in there — that is, that I did not get all of it out. I dressed the ⁵⁶ wound, and that night I think I wrote to Dr. Hunner and explained this to him, and I think I stated to him L was afraid there was still some gauze in there.” He did write on September 11th as follows: “Very much to my disappointment I removed about a foot of drain from Mrs. Stevenson and fear there is still some remaining.

She will be over to see you some time during this week and I would like you to examine thoroughly for more drainage.” Dr. Hunner replied on September 13th as follows: “I am sorry that we should have been so careless as to have lost a drain in Mrs. Stevenson, but that explains' what I could not explain before, why the wound should keep open. I think you will find it close promptly now and no permanent harm will result. I would wait two or three weeks before sending her over, just to see if the wound does not do better. I hardly think there can be another gauze.

Will you please tell Mr. S. I got his letter and wrote this to you ?” On the same day he wrote to Mr. Stevenson as follows: “I wrote to Dr. Madara this A. M. I am sorry to hear of that drain, but I am glad to know of its removal, for that is what has kept the wound from healing. I wrote to Dr. M. to keep Mrs. S. at home a few weeks, as you will now probably find prompt healing. It has mystified me to know why the wound kept open, and I am glad to have the explanation. I do not think it has harmed Mrs. Stevenson in any way, but it is certainly unpleasant to think of her having so much inconvenience.” That was in reply to a letter from Mr. Stevenson which he began by saying, “Dr. Madara was out to see Bertha Saturday evening and took a drain left in by some one’s' gross carelessness at the U. P. I.” Dr. Madara testified that about a week after he had taken out the gauze (Mrs. Stevenson wrote to Dr. Hunner that it was on October 8th) Mr. Stevenson came into his office very much excited and said he had something which he wanted him to look at.

He found that it was a piece of the rubberized silk. Mr. and Mrs. Stevenson testified that Mr. Stevenson removed it from the wound about' a week after the gauze ⁵⁷ was taken out by Dr. Madara, but on October 17th Mrs. Stevenson wrote to Dr. Hunner as follows: “Last Saturday evening a week ago, the 8th, Mr. Stevenson took a substance about three inches or more in length from the incision in my side. Dr. Madara says it was a silk rubber sack that was around the drain. You of course will know what it was.

Do you think there are any hatchets, saws or the like in me yet ? Now, Dr. Hunner, please write to me and give me your opinion. Do you think it will heal now ? Is there anything else that must work out before it can heal ?

Could that drain have injured my kidney, for I am sore in those parts and have pain at times. Please let me hear from you.” Dr. Hunner replied to her on October 18th as follows: “I do not wonder that you are surprised and disgusted with the foreign bodies that you have been fishing from your side. It is most humiliating to me to feel that such things could have been overlooked in your after treatment.. Unless you have, as you say, some saws or hatchets or forceps or some other foreign body, still tucked away in your side, I should say that your wound would now heal fairly rapidly.

You need not worry about this having affected your kidney in any way, as the drain was entirely outside of the kidney. Instead of answering your last letter to you I wrote to Dr. Madara rather fully and advised him to have you come up in the near future and allow me to go over your condition carefully. I hope you will be able to do this.” After the gauze and rubberized silk were removed the wound continued to drain and become very offensive. Mrs. Stevenson noticed on the dressing removed from the wound some tomato seeds and celery seeds.

She had eaten tomatoes and pickle which had celery seed in it, and it was subsequently ascertained that a fecal fistula had developed. She returned to Baltimore on November 2nd, 1910. Dr. Hunner examined the wound and on November 4th curetted it. That was done on November 4th at the Church Home, as the operating room at the Union Protestant Infirmary was in use.

Dr. Hunner gave her gas during that operation, and ⁵⁸ that afternoon she went to the home of her sister-in-law in Baltimore, where she went to bed. The following week pleurisy developed and the morning after Dr. Holland, who was sent for, pronounced it pleurisy, Dr. Hunner was called in and said she would have to go back to the hospital. She went to the Union Protestant Infirmary and remained there until some time before Christmas when she returned home. During that time Dr. Hunner did not give her any surgical treatment, but she was treated for the pleurisy and the wound was dressed from time to time.

She returned to the infirmary in January, 1911, and the wound was somewhat enlarged and curetted by Dr. Hunner. She remained at the hospital until February when she went home and the wound finally healed that summer. Dr. Hunner had a microscopic examination made in November, 1910, and tubercle bacilli were found. Mrs. Stevenson now has pulmonary tuberculosis, and the plaintiffs claim that it is the result of leaving the drains in her, while the defendant undertook to show that the portion of the kidney which was removed shows that the kidney was tuberculous at the time of the operation, although it was not discovered until after the examination in November, 1910.

At the time of the operation in June, Dr. Hunner did not examine to see whether the kidney was then tuberculous as he was of the opinion that the disturbance in the kidneys was the result of stone, as the test tended to show. The plaintiffs also contended that the fecal fistula with which Mrs. Stevenson suffered was the result of the gauze and rubberized silk being left in the cavity. The theory of the defendant on the main question is thus stated in the brief in his behalf: “That an operating surgeon at a hospital of repute, in the case of a wound left open, is not liable for the negligence of hospital surgeons, nurses or internes, in the after dressings of such wounds, if such operating surgeon is without knowledge of, or not privy to such negligence.” At this day when it is well known that there are physicians and surgeons of special skill in particular ⁵⁹ branches of their profession, it could not safely be announced as a general rule of law, applicable to' such cases as this, that a surgeon who performs an operation is liable for the negligence of other physicians, nurses or internes in hospitals in the after treatment, unless he specially undertakes such employment. A surgeon may be called many miles from his residence to perform an operation, and if he is to be held responsible for the negligence of others after the operation, it might mean either that one of special skill would refuse to perform such operations at distant points, or that his charges would be such that no one of moderate means could employ him.

It might be detrimental to the public if such a surgeon was required to attend to- the after-treatment, as it would be impossible for him to do so and perform as many operations as some of them do. It would be unreasonable to expect such a one as the record shows the appellant to be — performing operations in five different hospitals in Baltimore, and in one at Frederick, in addition to his other practice — to continue to dress the wounds and have personal charge of the after-treatment in all cases until the patient is discharged from the hospital. Although there have been many decisions in the Courts of this country and England as to the liability of physicians and surgeons for negligence and want of proper care, we have not been referred to any in which it has been held that a surgeon is responsible under such circumstances as the defendant’s evidence shows existed in this case. Akridge v. Noble, 114 Ca. 949, S. C. 41, S. E. 78, is one of the principal cases relied on by the appellees.

But in that case the sponges or pads which it was claimed caused the injuries complained of were placed in the wound during the operation, and the surgeon in charge denied that they were sewed into the abdominal cavity and a verdict in his favor was sustained by the Court. There was no such question presented as is raised here, — whether the surgeon is responsible for the negligence of the hospital surgeons, nurses or internes, in their treatment of the patient after the operation was over. ⁶⁰ So in Gillette v. Tucker, 67 Ohio St. 106 , S. C. 93 Am. St. Rep. 639 , it was claimed that the surgeon placed the sponge within the wound and sewed the wound up with the sponge inside. The Oourt was evenly divided on the question that was before it.

In Reynolds v. Smith,, 148 Iowa, 264 , S. C. 127 N. W. 193 , the piece of gauze was placed in the wound during the performance of the operation, and although the surgeon lost the case, the Court said: “The evidence disclosed that nurses and the interne sometimes dressed the wound. They were not employees or agents of the defendants, and unless defendants were negligent in permitting this to be done by them, they were not responsible for their acts save in so far as their duty exacted examination of the wound and proper treatment. Had there been evidence tending to show that from the acts