Stokes v. Haynes

MARVIN J. STERNBERG, Special Commissioner. This is an action for malpractice brought by appellant against the appellee, a physician, to recover damages for pain and mental suffering. Appellant charged that she experienced pain and mental suffering as the result of appellee’s negligence in his failure to attend and'treat her during her pregnancy and miscarriage. By pre-trial order, the issue of negligent care was eliminated. This appeal is from a judgment entered on a verdict directed in the appellee’s favor at the close of appellant’s evidence. [228] Appellant was under the medical care of the appellee during her pregnancy. He had agreed to take care of her at the birth of her child. She was hospitalized by the appellee for a period of ten days when she threatened to miscarry. On July 22, 1962, appellant was permitted to return to her home with instructions from the appellee as to her care and conduct. During the night of July 22, 1962, ap-pellee, by telephone communication, was advised that appellant was having more cramping and was in more pain. Appellee did not personally attend the appellant but prescribed for her care and treatment over the telephone. Later the same night ap-pellee was advised that appellant had miscarried, whereupon appellee advised further treatment to be given her and what disposition was to be made of the fetus. Several days later, at the direction of the appellee, appellant returned to the doctor’s office for examination. The salient issues are: (1) Did the ap-pellee, on July 22, 1962, wrongfully refuse to treat the appellant at her home or at the hospital? (2) Did the court commit error in excluding from the jury certain statements alleged to have been made by the appellee? Appellant’s physical condition and her pain and suffering were vividly detailed by lay witnesses. The appellee was called to testify as if on cross-examination and other medical testimony was offered. None of the medical testimony tended to sustain appellant’s plea, and she relied on lay testimony to sustain her cause of action. At the conclusion of appellant’s evidence the jury was instructed by the court to return a verdict for the appellee. The gravamen of the charge is that the appellee should not have permitted appellant to leave the hospital and return to her home and should have been present at the time of the miscarriage. Since there was no expert testimony to sustain appellant’s cause of action, the question presented is whether the circumstances disclosed by the testimony were sufficient to bring the case within the exception to the rule that expert testimony is necessary to support a cause of action for malpractice. The exception applies “where the common knowledge or experience of laymen is extensive enough to recognize or to infer negligence from the facts.” Butts v. Watts, Ky., 290 S.W.2d 777, 779; Neal v. Wilmoth, Ky., 342 S.W.2d 701; Harmon v. Rust, Ky., 420 S.W.2d 563. The question of just when and under what circumstances a physician treating a woman threatened with a miscarriage should keep her in the hospital or be at her side is not, in our opinion, one that can be answered on the basis of common knowledge. The testimony reveals that this is not a case coming within the exception to the rule.1 There is no showing that if the appellee had been present at the time of the miscarriage he could have done anything for her that was not done, or that she would have suffered any less pain or distress. There is no showing that his conduct was negligent or inconsistent with the standard of care that would have been exercised by other physicians in similar circumstances to those shown in this case. In the absence of such proof, the circuit court was correct in directing a verdict for the appellee. In view of the foregoing, it is unnecessary to determine whether the court committed error in excluding from the jury certain alleged statements made by the appel-lee. The appellee made no admissions against interest. The judgment is affirmed. OSBORNE and HILL, JJ., dissenting. Footnotes [1] For a discussion of the evidence required to establish a claim in a miscarriage case, see Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965).