Jacobs v. Grigsby

Vinje, C. J. The brief of appellants contains a statement of a number of well established principles of law applicable to malpractice cases, none of which need be discussed because they do not materially affect the questions presented by the facts in this case. The questions which control this case are these: (1) What was the length of the string used by defendant Grigsby? (2) What is the customary length of string used for the purposes for which this was used? and (3) Could the jury reasonably find that a string not to exceed two inches in length was the proximate cause of the injury to plaintiff? Upon the question of the length of the string the testimony is in sharp conflict. Dr. Richards, who performed the operation upon the plaintiff tO' remove the radium capsule from her stomach, testified that the string was six and — 663 — one-half inches in length and that he measured it after removing it. Dr. Grigsby testified the string was six and one-fourth inches in length, and that he also measured it after the removal of the string from plaintiff’s stomach. It is somewhat significant that the string was not produced upon the trial. Why it was not we are not advised. Rose Jacobs, the plaintiff, testified that the string was lying upon the table after the treatment of the left nostril and it was only about an inch and a half in length, but she also says that she didn’t pay very dose attention as to its exact length. Pauline Lippert, a nurse at the hospital, testified that she went into the operating room just as they were completing the operation. The plaintiff was then on the operating table and the tube of radium was removed just as she came into the operating room. It was taken by the surgical nurse and put on a tray. “The tube itself,” she says, “was between an inch and three quarters of an inch long, and the string that was on the tube was, as near as I remember, I should say an inch and a half or two inches long.” Miss Huxhold was a graduate surgical nurse at the hospital and an attendant during the operation. She testified that as far as she was able to judge the capsule itself1 was about three quarters of an inch long and the string attached was not more than two inches. She says: “I cannot recall whether it was an inch and three quarters or two inches long. I am not positive about that.” Upon further examination she said: “I am not positive whether it was an inch and three quarters or two inches long. I say I don’t think it was any longer than that. That is my best judgment.” Upon this state of the testimony it cannot be said that the verdict is without evidence to support it. The length was peculiarly a question for the jury to decide upon such conflicting testimony. As to the question what is the customary length of string used for the purposes for which this was used, it is claimed on behalf of defendants that there is no expert testimony — 664 — showing what the usual custom or practice is, and that in the absence of such testimony the jury as laymen cannot say that the string was shorter than what good practice required. It will be necessary, in order to determine the force of this contention, to examine the testimony of the defendant who performed the nasal treatment, namely Dr. Grigsby. He testifies as to what he did as follows-. “ I placed the radium first in the left nostril. The radium was in a capsule in a half-millimeter sterling silver tube. It amounts to the shape of an ordinary pill capsule, except it is smaller. It contains fifty milligrams of the radium element. The capsule is, approximately, one centimeter, a little less than half an inch; three eighths of an inch, very closely. It was about one sixteenth to one. eighth of an inch in thickness. My technique that I used in placing this radium is as follows: The technique that we have always used at Rochester was to pack the radium in place with vaseline gauze, using the gauze merely as a medium for holding it in the position in which we want it, so it wouldn’t vary in its position; and also with the idea that with the vaseline it would come out of the nose without bruising the nose. Attached to the loop on one end of the radium capsule we tie some sort of string, ordinarily black because we can see it, so that we may be able to see the string to aid us for convenience in removing it when we have completed the treatment. We take what we call bayonet forceps, and place the radium up in the position in which we want it, carry the vaseline gauze up against it, holding it in the position in which we want it; packing the upper middle meatus and lower meatus of the nose full, so that the radium is held in one position in the nose for the time of treatment. This radium was put in there in this way, and left for a period of two hours, constituting what we call a medical treatment of 100 milligram hours treatment, in the left side of the nose. The capsule is put in first.- Then the packing is put in. A string was attached to this capsule. When I first put the string on it was possibly twelve inches long. About that. That was its length before it went into the left nostril. After I got it into the left nostril, as I usually do I cut it off to the position which I find that the nose — 665 — needs to carry sufficient string out to find it easily on the side of the face. After I had fixed it on one side it was approximately six to six and a half inches in length, as I judged it at that time. The purpose of the string was to enable us to find the -radium to remove it easily, that is, something to make it easily removable. As to whether I fasten the string to anything after the tube is placed in the nostril and have finished the packing, — I usually take adhesive tape and fasten it to the side of the face so as it is easily located. I did that after I had packed the left nostril. That remained then exactly two hours. As to what I did then, — I removed it from that side, laid it over on my treatment table on a sterile towel, and prepared to treat the right side of the nose. I placed the radium capsule in the right side up into position. The string was attached at that time and was six and one-fourth inches long. I measured it later; after it was removed surgically from the stomach it measured six and one-fourth inches long. After I had placed this capsule in the right nostril, I took my vaseline gauze to pack it up into position in which it was to be held. In the process of packing, holding it up in this position (indicating), the radium, in some manner, became dislodged and I noticed that the patient swallowed. The string- disappeared, the black string. I removed my packing to look for it. At the time I removed my packing I had already put in a little more than half of the vaseline gauze packing, holding it up in the position I wanted it. I had not finished the packing. The purpose of this packing was to hold the radium in the position in which I placed it, to keep it in contact with the tissues we wanted it in contact with, so that it would remain in one location.” He further testified: “I think I did this work on Mrs. Jacobs in the usual and customary manner that physicians and surgeons of good standing in this and similar localities carry on that class of work, having due regard to the advanced state of medical science.” We have quoted Dr. Grigsby’s testimony quite at length in order to show what is the medical practice with reference to the length of string that is customarily used- It appears — 666 — from his testimony that a string six or six and a half inches in length is customarily used, and he testified that upon this occasion he used such length of string. It therefore appears in the case by the defendants’ own. testimony what the practice is with reference to the length of string used. And it appears that if the jury were warranted in finding that the length of string was not more than that testified to by the nurses and the plaintiff herself, that there was a wide departure from the length of string customarily used. His testimony that he used a string about six and a half inches long, and his further testimony that he followed the usual and customary practice in all that he did, sufficiently establishes the fact by expert testimony that a string for such a purpose is 'customarily of a length of about six and a half inches. Therefore the contention of the appellants that there is no expert testimony as to what the usual practice is as to the length of string is not borne out by the record. Defendants themselves supplied the testimony the plaintiff failed to introduce. The claim that the jury could not say that the shortness of the string was the proximate cause of its falling into plaintiff’s mouth and being swallowed is not tenable, first, because it is a matter of common knowledge that a capsule such as was used might pull up a string two inches long when beginning to fall backwards into plaintiff’s mouth, but might not pull up a string six and one half inches long — not to mention the much greater probability of the doctor being able to catch the string in the latter case, even if it was being pulled up, before it completely disappeared; and second, because it is a matter of common knowledge that a string two inches long might readily be swallowed under the circumstances existing, while a string six and one-half inches long might not be swallowed at all, or at any rate before it could be caught and held. The doctor testified that he knew the capsule might pass down the nasal passage into the mouth. Knowing that, — 667 — it seems to us he should have known that a string only two inches long was too short to safely prevent the capsule from so doing. At least we cannot say that twelve men may not reasonably come to such a conclusion. It is in evidence that in addition to the pain and suffering and loss of time usually attendant upon such an operation as that performed upon the plaintiff, she continued to suffer more or less pain at the time of the trial, over two years later, probably due to adhesions, and that there was no surgical or medical relief for pain caused by such adhesions. The verdict was approved by the trial court, and we cannot disturb it as excessive. By the Court. — Judgment affirmed.