The appellant filed a complaint in two paragraphs charging certain acts of negligence by the appellees in connection with the administration of a spinal anesthetic. The first paragraph charged the appellee, Dr. Margaret H. Tilden, with negligence in administering spinal anesthesia to the appellant in connection with an operation for the removal of appellant's appendix, which operation was performed by the appellee, Dr. J.D. McDonald. Such paragraph further alleges failure to make proper tests to determine the advisability of a spinal anesthetic, or to determine the
At the conclusion of appellant's evidence the court directed a verdict for all of the appellees. Judgment was rendered on such verdict, that the appellant recover nothing whatsoever from any of the defendants herein on either paragraph of said complaint, and that the costs be assessed against appellant except the costs of the struck jury in said cause, which were assessed against the appellee, Margaret H. Tilden.
Appellant filed a motion for a new trial which alleged irregularity and error of law occuring at the trial in that the court erred in directing a verdict for each of said appellees; that the court abused its discretion in directing the verdict for each of such appellees; and that the verdict and judgment against the appellant and
It is well settled that the trial court may, and it is its duty upon proper request, to direct a verdict for the defendant in cases where the evidence most favorable to the plaintiff, together with all reasonable inferences which a jury might draw therefrom, is insufficient to establish one or more facts essential to the plaintiff's right of action. Patterson v. Southern R. Co. (1913), 52 Ind.App. 618, 99 N.E. 491; Cleveland, etc., R. Co. v. Haas (1905), 35 Ind.App. 626, 74 N.E. 1003; Tabor v. Continental Baking Co. (1942), 110 Ind.App. 633, 38 N.E.2d 257. The foregoing rule only applies where it clearly appears that the evidence fails to establish one or more of the facts essential to a recovery, and where the facts and the reasonable inferences which may be drawn therefrom are not disputed, and where the only possible inference to be drawn therefrom is favorable to the party asking the instruction. Lyons v. City of New Albany (1913), 54 Ind.App. 416, 103 N.E. 20; Roberts v. Terre Haute Electric Co. (1906), 37 Ind.App. 664, 76 N.E. 323, 76 N.E. 895; Cleveland, etc., R. Co. v. Gossett (1909), 172 Ind. 525, 87 N.E. 723.
When a motion for a directed verdict is presented the court must consider only the evidence and reasonable inferences to be drawn therefrom which are in favor of the party against whom the directed verdict is sought. State ex rel. Thompson v. City of Greencastle (1942), 111 Ind.App. 640, 649, 40 N.E.2d 388; Kettner v. Jay (1940), 107 Ind.App. 643, 645-646, 26 N.E.2d 546; Orey v. Mutual Life Ins. Co. of N.Y. (1939), 215 Ind. 305, 306-307, 19 N.E.2d 547. The trial court is not permitted to weigh the evidence in passing upon a motion for a directed verdict, for to
From the record herein and the evidence presented on behalf of the appellant, and the reasonable inferences to be drawn therefrom most favorable to the appellant, the following facts appear:
At the time the spinal anesthetic was administered by the appellee, Dr. Margaret H. Tilden, she was employed by the appellee, Protestant Deaconess Hospital Association of Evansville, Indiana, and she had been assigned by said appellee hospital association to administer the spinal anesthetic to the appellant following the request of the appellee, Dr. J.D. McDonald, that he be furnished with a hospital anesthetist. Appellee Dr. Tilden, a physician who had been practicing in her special field of anesthesiology in the city of Evansville, Indiana, since April 1948, gave expert medical testimony to the effect that in the case of a spinal anesthetic the needle should be inserted between the second and third lumbar vertebra of the spine and that such area was the place where the anesthetic "should be given." There was, therefore, competent medical evidence establishing proper medical standards as to the proper place for the administration of the anesthetic in this case. Walker Hospital v. Pulley (1921), 74 Ind.App. 659, 664-665, 127 N.E. 559, 128 N.E. 933; Lashley v. Koerber (1945), 26 Cal.2d 83, 156 P.2d 441; Buckner v. Wheeldon (1945), 225 N.C. 62, 33 S.E.2d 480. It has been held that such standards may be established by the testimony of the defendant
While there is conflicting evidence as to where the spinal anesthetic was administered, Dr. Ver Brugghen testified regarding his examination of the appellant that the appellant pointed to a place in the region of the twelfth thoracic vertebra in which he believed the injection of the needle was made. Appellant's parents both testified that after the operation they saw a red spot on appellant's back to the left of his spine and a short distance below his shoulder blade.
Appellant was conscious when the spinal anesthetic was administered and at such time pain shot into appellant's head and he felt as though he had been hit by something. The anesthetic was administered by means of a hollow metallic needle about four inches long and between 1/16 and 1/32 of an inch in thickness. Following the administration of the anesthetic appellant became nauseated, his right foot and right leg were paralyzed and numb, he was unable to urinate and had to be catheterized. These conditions, in moderated form, still existed at the time of the trial and had existed since the spinal anesthetic was administered. Sensitivity to pain and temperature was absent. The same condition that prevailed with reference to the leg existed from the waist down and from the center, including the right half of the penis, in front and behind. Appellant's sleep had also been affected. Prior to the administration of the spinal anesthetic appellant had never had anything wrong with his back or the right side of his body. As a result of the spinal anesthetic being administered at the point where it was, his spinal column was permanently injured. There is a medical testimony that appellant sustained a partial conus injury,
The foregoing evidence in this record regarding the administration of the spinal anesthetic and the medical testimony regarding appellant's conditions and symptoms completely negatives any involvement of the anatomical structure which would have been affected by administering the anesthetic in the proper place in the region of the second and third lumbar vertebra.
On the record before us, therefore, the lower court was bound to have concluded that a reasonable inference might have been drawn by the trier of the facts, based upon competent and expert medical evidence, considering the proper manner and method under accepted medical standards of reasonable care and skill, that Dr. Margaret H. Tilden, a skilled anesthetist, was guilty of actionable negligence as charged in the complaint in making the injection for this spinal anesthetic too high.
The appellee Tilden relies strongly on the case of Ayers v. Parry, 192 F.2d 181 (CCA 3rd, 1951). However, a comparison of the facts in the case at bar with those of the Ayers case makes it necessary for use to conclude that such case is not of controlling merit when applied to the question involved herein. In the Ayers case the spinal anesthetic was administered at the proper place, between the second and third lumbar vertebrae, and the patient suffered an injury to the nerve roots in the lower end of the spinal cord and this condition was produced by the spinal anesthesia. The court in rendering its opinion stated:
The court also in the Ayers case, supra, drew a distinction between the facts of the case under consideration and cases involving an ulterior act or omission in the following language:
It must be noted that our Supreme Court in Worster v. Caylor, supra, which was a case involving the accidental nicking of a bowel during the performance of an internal operation, called particular attention to the fact that the appellant patient was wholly under the influence of an anesthetic while the operation was in progress during which the injury was alleged to have occurred. In the case at bar the appellant was conscious
The foregoing evidence considered in connection with the expert medical evidence concerning the nature of the injuries received, and the competent medical evidence as to proper standards of procedure in the administration of spinal anesthetics, created a substantial basis for a reasonable inference that an ulterior act contrary to the usual and accepted standards of reasonable care and skill constituting actionable negligence was committed by appellee, Dr. Margaret H. Tilden. Walker, Adm. v. Steele et al. (1889), 121 Ind. 436, 22 N.E. 142, 23 N.E. 271; Suit v. Hershman (1918), 66 Ind.App. 388, 118 N.E. 310; Spahr, Adm. v. Polcar (1919), 71 Ind.App. 523, 125 N.E. 419; Nat. City Bank v. Kirk (1926), 85 Ind.App. 120, 134 N.E. 772.
Further error is predicated on the action of the court in directing a verdict in favor of the appellee, Dr. J.D. McDonald. The evidence in the record shows that the appellant employed Dr. J.D. McDonald to perform the operation for the removal of appellant's appendix and that the appellee, Dr. Margaret H. Tilden, who was employed by the appellee hospital association, was assigned to administer the anesthetic to the appellant following the request of the appellee, Dr. McDonald, that he be furnished with a hospital anesthetist. There is no claim made that such anesthetist was not a duly qualified and experienced specialist in the field of anesthesiology. The undisputed evidence shows that Dr. McDonald
The cases uniformly hold that a surgeon is not liable for the negligence of the anesthetist unless such negligent acts of such anesthetist are committed under such circumstances as impose a duty on the surgeon to correct the anesthetist. Loudon v. Scott (1920), 58 Mont. 645, 194 Pac. 488, 12 A.L.R., 1493 to 1495; Wiley v. Wharton (1941), 68 Ohio App. 345, 41 N.E.2d 255; Ayers v. Parry, supra; Cavero v. Franklin, etc., Benevolent Soc. (1950), 36 Cal.2d 301, 223 P.2d 471; Meyer v. St. Paul Mercury Indemnity Co. La. (1952), 61 So.2d 901; Levy v. Vaughan (1914), 42 App. D.C. 146; Hohenthal v. Smith (1940), 114 F.2d 494, U.S. Ct. App. D.C.
In this age of specialization in the practice of medicine it is the duty and function of courts of law to apply rules of law with an intelligent understanding of developing civilization in the field of medicine and surgery. Certainly it would be unjust to hold a family physician responsible for negligent acts of a surgeon whom he might recommend. 46 A.L.R. 1454; Nelson v. Sandell (1926), 202 La. 109, 209 N.W. 440; 46 A.L.R. 1447; Mayer v. Hipke (1924), 183 Wis. 382, 197 N.W. 333; Brown v. Bennett (1909), 157 Mich. 654, 122 N.W. 305.
While Dr. McDonald requested that the hospital furnish an anesthetist it appears to this court that there is nothing shown in the circumstances of this record,
The appellant assigns further error in the action of the lower court in directing a verdict in favor of the appellee, Protestant Deaconess Hospital Association of Evansville, Indiana. The law of this state binding upon this court as to the liability of hospital corporations is set forth in the case of Iterman v. Baker (1938), 214 Ind. 308, 15 N.E.2d 365, in the following language:
This case, in applying the settled law of this state, holds that the duty of a hospital corporation, in respect to physicians and surgeons, would be complied with by using reasonable and ordinary care to employ reasonably qualified, reputable, licensed physicians, and in such cases the physicians or surgeons are independent contractors. Iterman v. Baker, supra. Wabash R. Co. v. Kelley (1899), 153 Ind. 119, 52 N.E. 152, 54 N.E. 752; Wabash R. Co. v. Reynolds (1908), 41 Ind.App. 678, 84 N.E. 992.
No claim is made in the record before us that the anesthetist, Dr. Tilden, who was employed by the hospital, was not a reasonably qualified, reputable, licensed physician and anesthetist.
The lower court did not err in directing a verdict in favor of the appellee, Dr. J.D. McDonald, and the appellee, Protestant Deaconess Hospital Association of Evansville, Indiana, but such lower court did err in directing a verdict in favor of Dr. Margaret H. Tilden.
This cause is therefore affirmed in part as to the action of the trial court in sustaining motions for a directed verdict in favor of Dr. J.D. McDonald and Protestant Deaconess Hospital Association of Evansville, Indiana, and in rendering judgment thereon in favor of such appellees.
However, the lower court abused its discretion and invaded the province of the jury by giving its written instruction tendered and requested by the appellee, Margaret H. Tilden, directing a verdict for the defendant, Margaret H. Tilden, on each paragraph of appellant's complaint before the introduction of any evidence by said appellee, and the verdict and judgment of the lower court in favor of the appellee, Margaret H. Tilden, is contrary to law.
This judgment is therefore hereby reversed as to the action of the trial court in sustaining a motion for a directed verdict in favor of appellee, Margaret H. Tilden, and in rendering judgment in her favor.
Judgment affirmed as to appellees, J.D. McDonald and Protestant Deaconess Hospital Association of Evansville, Indiana, and reversed as to appellee, Margaret H. Tilden.
Royse, C.J., not participating.
NOTE. — Reported in 133 N.E.2d 864.
Transfer denied Bobbitt and Emmert, JJ., dissent (without opinion).