Passey v. Budge , 85 Utah 37 ( 1934 )

In my opinion, the evidence in this cause entitled plaintiff to go to the jury. The negligence charged in the complaint was that:

"(a) Defendant negligently and unskillfully used, operated, turned and/or twisted his instrument, known as a Sluder LaForce Tonsilectome instrument, in such negligent and unskilful manner that he caused the cutting blade of the said instrument to break, and negligently and unskillfully allowed the broken piece of said steel blade, (which broken piece plaintiff alleges was a sharp pointed, three-cornered piece of steel blade approximately one inch in length and 5/8 of an inch in width) to fall or drop into plaintiff's throat while plaintiff was thus lying on the operating table in a helpless position, as aforesaid, and defendant negligently and unskilfully failed to remove the said broken piece of steel blade from the plaintiff's throat immediately after it broke and fell into her throat, or at all.

"(b) That defendant negligently failed to have an X-ray picture taken of plaintiff's throat, while said broken blade was lodged therein, which plaintiff alleges would have disclosed the exact location and position of said broken blade and would thus have facilitated its removal before it passed down her throat into her esophagus.

"(c) That defendant negligently failed to call in the help or assistance of other doctors or physicians, if such help were necessary, in the locating and removing said broken piece of steel blade from plaintiff's throat, but on the contrary plaintiff alleges that defendant in a grossly negligent, careless, and unskilful manner gouged, forced and pried other instruments down plaintiff's throat in a grossly negligent and unskilful effort, as plaintiff now believes and therefore alleges, to recover and remove the said broken piece of steel blade from plaintiff's throat; which negligent and unskilful acts, cut, bruised, scratched and sprained the plaintiff's throat which caused her great pain, suffering and distress for long period of time thereafter.

"(d) That defendant negligently and unskilfully allowed and permitted the said broken piece of steel blade to pass down into plaintiff's throat and into her esophagus where defendant negligently and unskilfully permitted it to remain.

"(e) That plaintiff was wholly ignorant and unaware of the fact that the said broken piece of steel blade had passed down her throat and into her body. That from and after her said tonsillectomy operation the plaintiff suffered constant pain and distress, until the said broken piece of steel blade was removed from her body about the 6th day of January, 1932. That at various and divers times after her said tonsillectomy operation during the years 1925, 1926, 1927, 1928, 1929, and until about July 17th, 1930, the plaintiff went to the defendant as her doctor and physician for relief and treatment from her pain, suffering and distress caused by the said broken piece of steel blade in her body. That during all of said time and times the defendant negligently failed, and refused to remove or cause the said broken piece of steel blade to be removed from the plaintiff's body, and negligently failed and refused to inform or advise the plaintiff as to the real cause of her ailment, suffering and distress, and negligently failed to advise the plaintiff that said broken piece of steel blade had passed down her throat and into her body; and negligently failed to prescribe for the plaintiff the necessary remedy or steps for its removal. That during all of said period of time to and including the 17th day of July, 1930, as aforesaid, the defendant negligently and unskilfully failed and omitted to prescribe and employ the care and treatment which was necessary and proper and required to give the plaintiff relief from her constant pain and suffering or for the removal of the said broken blade from her body.

"V. The plaintiff alleges that during all of said period of time from about the 13th day of May, 1925, to the 17th day of July, 1930, the defendant was the plaintiff's doctor and physician and that at various and divers times during each and every year during said period the plaintiff came to the defendant as her doctor and physician and sought relief from her pain and distress caused by the said broken piece of steel blade in her body, and for relief from the injury sustained and caused to the plaintiff by the defendant as a result of the said tonsillectomy operation. That during all of said period the defendant was well aware that the cause of the plaintiff's distress and suffering was the said broken piece of steel blade in her body, but that nevertheless the defendant negligently and unskilfully permitted the said broken piece of steel blade to remain in the plaintiff's body, knowing that the same had gone down the plaintiff's throat and into her esophagus, and knowing that the same had not been removed, and knowing that plaintiff was wholly ignorant of the fact that the same was in her body. In this connection plaintiff further alleges that defendant negligently and unskilfully failed and refused to advise plaintiff at the time of said operation, or at any time thereafter, that the said broken piece of steel blade had passed down plaintiff's throat and into her esophagus or that the same was in her body and had not been removed, knowing that the plaintiff was ignorant of such fact, and knowing during all of said time that plaintiff was experiencing great distress, pain and suffering on account thereof, and was asking defendant, as her doctor and physician, to give her relief."

To the complaint, defendant demurred generally and specially. The special demurrer was for uncertainty and upon the ground that the action was barred by the provisions of Comp. Laws Utah 1917, §§ 6467 and 6474. Defendant moved to strike certain of the allegations of the complaint, and also moved that plaintiff be required to separately state the cause of action based upon the alleged negligence of the defendant in performing the tonsillectomy on May 13, 1925, and that based upon the alleged negligence of the defendant in the treatment of plaintiff subsequent to the operation. The demurrer was overruled. The motion to strike and the motion to state separately the causes of action were denied. In his answer, defendant admitted that he performed an operation for the removal of plaintiff's tonsils, denied the negligence charged, and pleaded as a bar to the action the sections of the Comp. Laws Utah 1917, relied upon in the demurrer. At the conclusion of the evidence, defendant moved for a directed verdict upon the grounds: First, that the evidence showed plaintiff's cause of action was barred by the statute of limitations and particularly by the sections pleaded in the answer; second, that there was no proof of the negligence alleged in the complaint or any negligence of the defendant; and, third, that there was a failure of evidence to establish the following allegations: That a Sluder La Force instrument was used in the operation; that the instrument used was broken in such manner that a piece of the blade became detached therefrom and went down plaintiff's throat; that defendant was negligent in recovering the blade; that the piece of blade was not removed; that the piece of steel, Exhibit J, is a part of a Sluder La Force instrument; that Exhibit J went into plaintiff's intestinal tract; that plaintiff sustained any damage as a result of Exhibit J being in her body.

Some question seems to be raised in the briefs of counsel and was urged at the oral argument as to the correctness of the order overruling the demurrer, and particularly with respect to the bar of the statute of limitations. No error is assigned because of such ruling, and therefore such question is not before us for review.

It is an elementary rule of law that in passing upon a motion for a directed verdict the evidence must be viewed in the light most favorable to the party against whom the moving party seeks a directed verdict. Much of the evidence which tends to support any one of plaintiff's claims also tends to support other allegations of the complaint. In view of such fact, it may be well, at the outset, to briefly summarize such evidence as tends generally to support plaintiff's cause of action before proceeding to point out the particular evidence which tends to support the various allegations of the complaint which defendant claims are without support. There is substantial evidence tending to show that defendant is, and for a number of years has been a physician and surgeon; that he is a specialist in the eye, ear, nose, and throat; that at the time of the removal of plaintiff's tonsils, and for nine years prior thereto, and up to the time of the bringing of this action, he was the family physician of the plaintiff; that on May 13, 1925, he removed plaintiff's tonsils; that before the operation was performed a local anesthetic was given to plaintiff; that, after defendant began to remove plaintiff's tonsils, it was discovered that the effects of the local anesthetic so given had worn away and an additional anesthetic was administered; that the operation was very painful, and as a result plaintiff screamed and attempted to get the defendant to desist from proceeding therewith, but the defendant would not release the instrument from her tonsil; that, while the operation was being performed, plaintiff was lying flat on her back on the operating table; that, when the first tonsil was removed, defendant remarked, "Oh, pshaw! I have broken the blade. It shouldn't have broken. It is made of the best steel. Get me another instrument"; that the instrument used in removing the tonsils was similar to and looked like the Sluder La Force instrument which was offered and received in evidence; that, after the tonsils were removed, defendant gouged and clipped something in plaintiff's throat; that, when plaintiff complained of pain and asked defendant what he was doing, he replied he was clipping off the cords in her throat; that, after her tonsils were removed, plaintiff suffered intense pain in her throat and chest; that for about three weeks she was confined to her bed, was unable to eat any food or drink any liquid; that, after the pain subsided in her throat and chest, she suffered pain in her stomach and later in her abdomen; that she consulted the defendant concerning her ailment in November, 1925, in the spring of 1926, in December, 1928, in April, 1929, and in July, 1930; that, when she consulted the defendant in July, 1930, she informed him that she could feel something moving and sticking within her; that, prior to the removal of her tonsils, plaintiff was in good health; was engaged in nursing, household work, and work on her husband's farm; that after the operation she was in poor health and much of the time was confined to her bed; that she suffered considerable pain, first in her throat and chest, then in her stomach and later in her intestines; that she became constipated and bloated; that in January, 1932, as she was having a bowel movement, she felt the piece of blade, Exhibit J. move down her bowels and lodge in her rectum; that she suffered intense pain until July 6, 1932, when the blade was removed by defendant's brother, who is also a physician; that, after the removal of the blade, plaintiff's internal pain ceased and she began to regain her health. The blade, Exhibit J, was received in evidence and is a part of the record on appeal. It is a triangular piece of steel. It is about the thickness of the blade of an ordinary pocketknife. It measures 7/8 of an inch on one side and 5/8 of an inch on the other two sides. The longest side is sharp, the other two sides are blunt, and show unmistakable evidence of having been broken out of a larger piece of steel. Two of the corners of the blade are sharp; the other somewhat blunt. A more detailed statement of the evidence will be reserved until we reach a discussion of the various grounds relied upon for a directed verdict.

It seems to be respondent's position that it was vital to plaintiff's cause of action for her to prove that the instrument used was a Sluder La Force tonsillotome. I do not concur in such view. Plaintiff did allege in her complaint that the instrument was known as a Sluder La Force instrument. However, plaintiff's cause of action may not be defeated by a mere lack of knowledge of the name of the instrument used or, if known, a failure to allege correctly the name thereof. "No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." R.S. Utah 1933, 104-14-1. No question of variance was raised in the court below, and therefore it may not be here raised for the first time. McCall Co. v. Jennings, et al.,26 Utah 459, 73 P. 639. It was, however, vital to plaintiff's cause that she produce evidence tending to show among other facts that the instrument used had a blade which broke during the operation; and, if she failed to produce such evidence, there was a failure of proof as distinguished from a variance. Plaintiff and her husband both testified that the instrument used by defendant in removing plaintiff's tonsils was similar in appearance to a Sluder La Force tonsillotome which was received in evidence, and that during the operation defendant made the remark, "Oh, pshaw! I have broken the blade. It shouldn't have broken. It is made of the best steel. Get me another." The Sluder La Force tonsillotome which was received in evidence has two blades which are moved forward and backward through grooves in the side of the instrument. The lower blade is blunt, and is used to pinch and hold the tonsil in place while it is being removed. The upper blade is sharp on the end, and is used to cut off the tonsil. Both blades are moved forward and backward by a screw arrangement. Plaintiff testified that every time defendant turned the thumb screw which controlled the cutting blade she experienced excruciating pain. The plaintiff, her husband, and her sister-in-law testified that the blade, Exhibit J, was in her rectum. The husband and sister-in-law testified that they saw the blade in plaintiff's rectum before it was removed and that they saw the doctor remove it therefrom. Plaintiff testified that she felt the steel blade move down into the rectum from the bowels above; that she felt it in her rectum, and it caused her intense pain until it was removed. The evidence is all to the effect that, if the steel blade was removed from where the plaintiff and her witnesses testified it was lodged, it must have got into plaintiff's alimentary canal through the mouth. The sharp edge of the steel blade, Exhibit J, is approximately the same length as the cutting blade on the Sluder La Force instrument which was received in evidence. This evidence is all consistent with, and tends to establish, plaintiff's claim that defendant used an instrument with a cutting blade to remove plaintiff's tonsils; that the blade broke and passed down plaintiff's throat and through her alimentary canal. Assuming the facts to be as so testified to (as we must do in passing upon the motion for directed verdict), it is difficult to account for their existence on any other theory than that advanced by plaintiff.

It is earnestly contended on behalf of defendant that such evidence is not worthy of belief, especially in the light of the evidence offered by the defendant and the other expert witnesses who testified in his behalf. Particularly is it urged that it was impossible for the steel blade, Exhibit J, to remain in plaintiff's body from May 13, 1925, to January 6, 1932, or to lodge in plaintiff's rectum or elsewhere in her alimentary canal. A number of doctors did testify that a steel blade such as Exhibit J would pass through an alimentary canal of a person within a few days without such person experiencing any pain or ill effects therefrom, and that it would not or could not lodge in plaintiff's rectum or elsewhere in the alimentary canal. In this connection it should be noted that the doctor who removed the steel blade testified that it was removed from the perineal tissue near the anus and not from the rectum. A layman unfamiliar with the human body and the manner in which it functions is not competent to testify as to the length of time it will probably require an object such as Exhibit J to pass through the alimentary canal of a person or whether it probably will or will not lodge therein. But a layman who actually sees and feels an object such as Exhibit J lodged in the rectum is not precluded from testifying to such fact. If the trier of the facts believes the layman speaks the truth in such respect, the finding should be made accordingly, notwithstanding experts express an opinion to the contrary. The claim that an object such as Exhibit J lodged in the rectum or other part of the alimentary canal may not be said to be contrary to physical facts or established laws of nature so that courts will take judicial notice that such a claim is unfounded. Human bodies are not all alike, and they do not function in the same manner. Moreover, there was some expert testimony offered which tends to support plaintiff's contention that Exhibit J in all probability would be materially delayed if not prevented from passing through plaintiff's alimentary canal.

Reuben L. Hill testified on behalf of plaintiff. According to his testimony, he had prior to the time of the trial made a study of the human body, including the alimentary canal and its workings. He had taken out a doctor's degree, had been teaching physiology, had dissected a human body, and had served as a sanitary officer of the United States in the World War. At the trial he presented a life-sized manikin of the alimentary canal. He explained the various parts of the alimentary canal and its functions and the extent to which the various parts thereof could be made to expand. He testified that the size of the organs in one person differed from those of another and, that an object such as Exhibit J would be likely to lodge in the pyloric or sphincter valve at the junction of the stomach and the intestines, and that it might well cause an obstruction in the intestines.

It is next urged in support of the order directing the verdict for the defendant that, conceding defendant used an instrument with a blade in it, the blade broke and fell into plaintiff's mouth and was permitted to pass through her alimentary canal; still such facts failed to show that defendant was negligent. The view thus contended for is contrary to the great weight of judicial authority. If the facts mentioned be established, then this case falls within the doctrine of res ipsa loquitur. The definition of such doctrine, which has often been quoted, is that, "When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." As thus defined, this court has had occasion to apply the doctrine in a number of cases. Among them: Christensen v. Oregon Short L.R. Co.,35 Utah 137, 99 P. 676, 20 L.R.A. (N.S.) 255, 18 Ann. Cas. 1159;Dearden v. San Pedro, etc., R. Co., 33 Utah 147, 93 P. 271;Williamson v. Salt Lake Ogden R. Co., 52 Utah 84,172 P. 680, L.R.A. 1918F, 588; Zoccolillo v. Oregon Short L.R. Co.,53 Utah 39, 177 P. 201. Cases dealing generally with the doctrine will be found collected in a footnote to the text in 45 C.J. 193 et seq.

There is a conflict in the evidence in this case as to the kind of instrument which was used in removing plaintiff's tonsils, but the evidence is all to the effect that the instrument used, whatever its nature, was under the exclusive control and management of the defendant during the operation. Defendant made no explanation as to how the blade of the instrument broke. His defense was that the instrument used was without a blade.

It is further contended that, if it be conceded that defendant was negligent as claimed by plaintiff, still she failed to make out a case to entitle her to go to the jury because she failed to establish by competent evidence that the injury complained of was caused by the blade falling into her mouth and passing through her alimentary canal. Such contention is bottomed on the claim that plaintiff's injury, if any, could be shown only by expert testimony; that no such testimony was offered or received at the trial; that, on the contrary, the testimony of a number of expert witnesses shows that the pain, suffering, and sickness complained of by the plaintiff were not and could not have been caused by the steel blade passing through her alimentary canal. As bearing upon that issue, there is evidence tending to show that prior to the operation plaintiff was in good health; that between the time of that operation and the removal of the steel blade from plaintiff's body she experienced cutting pains in various parts of her alimentary canal and was in poor health, but after the steel blade was removed the pains ceased, and she immediately began to regain her health. There is expert evidence which tends to show that the esophagus, the sphincter valve, the intestines near the rectum become painful if cut or otherwise injured, but that the intestines generally may be cut without causing pain; that pain is caused in the stomach and intestines when they are distended as by gas and also when they are pulled out of their normal position; that an object such as the blade, Exhibit J, might well lodge in the sphincter valve and prevent it from completely closing and thus permit food to be forced back into the stomach from the intestines; and, if the blade, Exhibit J, should lodge in the valve or in the intestines, it would tend to prevent the passage of food through the alimentary canal. In answer to a hypothetical question asked three doctors as to what was the probable cause of plaintiff's pain, suffering, and ill health, one attributed them to nervousness due to her being in the change of life; another testified that her pain and ill health could be easily attributed to gall stones or chronic appendicitis; and another expressed it as his opinion that plaintiff had been suffering from neurosis, and many of her pains were probably imaginary.

There is no evidence that plaintiff ever had gall stones or that she suffered from chronic appendicitis. There is evidence that she was of that age when women are in the change of life. In my opinion, the foregoing evidence entitled plaintiff to have the jury pass upon the question of whether or not the pain, suffering, and ill health complained of were caused in whole or in part by the presence of the blade in her alimentary canal. If plaintiff was free from pain and in good health up to the time of the tonsillectomy, and if she suffered almost constant pain and ill health until the blade was removed, and that she then was again free from pain and in good health, as testified to by her witnesses, such testimony, if believed by the jury, would tend to support the finding that the presence of the blade caused or contributed to her suffering and ill health. If the jury should find that the blade fell into plaintiff's mouth at the time of the operation and remained in her alimentary canal until it was removed, there is expert testimony that it would likely cause pain and suffering. Parts of the alimentary canal are admittedly sensitive to any scratching or cutting by an object passing through them. There is expert testimony as to the size of the various parts of the alimentary canal and the likelihood of the blade becoming lodged therein, of obstructing the passage of food, and of interfering with the normal functioning of the digestive organs. Such evidence may not be said to be so lacking in substance as to justify as a matter of law a finding that plaintiff failed to establish that she sustained any injury by reason of the steel blade passing into and remaining in her body.

The claim that plaintiff's cause of action is barred by the statute of limitation is not free from doubt. One line of cases seems to support defendant's position that plaintiff's claim is so barred. What I conceive to be the greater weight of authority and supported by the better reasoning is to the contrary. The principles of law announced by this court in the case ofPeteler v. Robinson, 81 Utah 535, 17 P.2d 244, are in harmony with the view that plaintiff's cause of action is not barred. In this case, defendant continued to act as the family physician of plaintiff until a very short time before this action was begun. While there was no agreement between them that the relation of patient and physician should continue for any specified length of time, still plaintiff called defendant whenever she needed medical attention, and each testified at the trial that the latter was family physician of the former for many years prior to the performing of the tonsillectomy and up to the time of the commencement of this action. The relation of the parties in this case, as in the former case, was that of physician and patient, in which the patient reposed trust and confidence in her physician.

It is urged that this case does not fall within the rule announced in the case of Peteler v. Robinson, supra, because in this case defendant ceased treating plaintiff's shortly after her tonsils were removed, and that such treatment as he thereafter gave plaintiff was for other ailments. In my opinion, the distinction is lacking in substance. If the subsequent ailments suffered by plaintiff were caused by the negligence of the defendant in performing the operation, defendant should not be permitted to plead the bar of the statute merely because the subsequent treatment was confined to some part of plaintiff's body not operated upon. Nor may the two cases be distinguished on the ground that in the former case there were allegations to the effect that the defendant fradulently concealed from plaintiff the fact upon which her cause of action was bottomed, while in the present case there is no evidence that defendant fraudulently concealed from plaintiff any of the facts upon which she relies. Fraud or deceit may arise from silence where there is a duty to speak the truth, as well as from the speaking of an untruth. If the defendant knew that he broke the blade at the time he performed the tonsillectomy, and there is evidence tending to show that he did, and if he knew that the blade passed down plaintiff's throat, and there is evidence from which the jury might so find, then and in such case it may not be said as a matter of law that plaintiff was under no duty to inform the plaintiff of such facts or that he was under no duty to ascertain whether it passed, or failed to pass, through her alimentary canal. In view of the existence of the relation of physician and patient, the latter had a right to assume that the former would inform her of such occurrence or that he would take such steps as might be necessary to prevent the blade from causing her any injury. Silence on the part of a physician under such circumstances is calculated to deceive and mislead a patient as well, and probably as effectively, as his protestations that no mishap occurred. It is well settled in courts of equity that a fraudulent concealment of a cause of action will postpone the operation of the statute of limitations until the discovery of the fraud. By the weight of authority the same rule prevails in actions at law. 37 C.J. 972; note in 25 L.R.A. 566.

The judgment should be reversed, the case remanded to the court below, with directions to grant a new trial, and the appellant should be awarded her costs.