Before WILBUR K. MILLER, Chief Judge, and EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN, and BURGER, Circuit Judges, sitting en banc.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1961.CDC.54
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER
BURGER, Circuit Judge, with whom WILBUR K. MILLER, Chief Judge, and PRETTYMAN, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, join.
In this action for wrongful death the District Court directed a verdict for the defendant at the close of plaintiff's case. On the evening of June 4, 1957, the decedent, Quick, visited the appellee, Dr. Thurston, to obtain relief from urine retention; he had long suffered from diabetes and urethral stricture. The treatment consisted of the insertion of certain instruments into the urethra to relieve the stricture and the administration of penicillin as a safeguard against infection. The urine drained during the treatment showed the presence of infection in the lower urinary tract, which was to be expected in view of the abnormal urinary retention. The decedent returned home after the treatment which was administered between 10:00 and 11:00 P.M.
During the night the patient developed chills, high temperature and began hemorrhaging. His wife called the doctor's house at 4:00 A.M. and again at 6:00 A.M., but on both occasions the doctor's wife refused to awaken him. A call at 9:00 A.M. reached the doctor and he prescribed additional antibiotics which were promptly delivered to decedent's home. Meanwhile, Mrs. Quick had called a relative who also was a physician. This physician countermanded Dr. Thurston's directive for additional antibiotics and instead recommended immediate hospitalization. At the hospital the urethral stricture was relieved by the insertion of instruments and specimens showed septicemia (blood-poisoning) due to a proteus organism. Eleven days later the patient died.
The pretrial proceedings in the action for wrongful death framed four elements of negligence: (1) Failure to determine whether the decedent was in a condition to undergo treatment; (2) Failure to administer antibiotics prior to treatment; (3) Failure to provide proper post-treatment care; (4) Use of unsterile instruments.
Appellant does not suggest that the record contains evidence sufficient to warrant submission of the first allegation of negligence to the jury. With respect to the second allegation, there was no evidence that proper medical practice required administration of antibiotics before, rather than immediately after, the urethral manipulation. Moreover, there was no evidence that prior administration would have prevented the infection. Appellant's case on appeal rests primarily upon alleged abandonment, use of unsterile instruments, and res ipsa loquitur.
In an action for malpractice the burden is on the plaintiff to establish that the defendant did not exercise "that degree of care and skill ordinarily exercised by the profession in his own or similar localities." Rodgers v. Lawson, 1948, 83 U.S.App.D.C. 281, 282, 170 F.2d 157, 158; Prosser, Torts § 31 (1955). Here the plaintiff failed to introduce any evidence of the standard of care in support of the allegations of abandonment. No testimony was offered to show that the standard of medical care in the community would require an earlier response by the doctor. Thus the jury was left without means to determine whether the doctor was negligent in not responding to the earlier calls, and the trial court correctly directed a verdict for the defendant on this issue. Cf. Rodgers v. Lawson (supra). Moreover, even if such evidence had been introduced, plaintiff's evidence failed to establish that the doctor's delay in answering in any way contributed to the death of Mr. Quick. Indeed, plaintiff's medical expert stated that he could not express an opinion whether speedy treatment of this condition generally tended to bring such an infection under control. In this state of the evidence the jury could not have determined whether the absence of medical treatment during the night contributed to the death, for it could not be determined whether earlier treatment would have had any beneficial effect. Moreover after the appellee had prescribed and arranged for additional antibiotics there intervened the judgment and decision of another doctor who countermanded appellee's direction to administer the antibiotics. On this record, the direction of a verdict for the defendant on the claim of abandonment was compelled by the failure of proof on both aspects of liability - negligence and causation.
The final claim of negligence, upon which plaintiff relies heavily, is the use of instruments which appellant alleges were unsterile. Specifically, appellant cites the testimony of her medical witness that "the urethral manipulation did cause this septicemia" and that the proteus organism "could have been introduced at that time, and from the course of events, most likely was." Taken by itself, without analysis, this testimony might have given the impression that Dr. Maganzini expressed an opinion that the proteus organism was in fact introduced by unsterile instruments. But the full context and further statements of the doctor demonstrate that such was not his meaning. Appellant's witness makes it plain that the "urethral manipulation" he referred to was the treatment given and he explained that the history of urethral stricture as well as the cultures developed from specimens taken after the decedent entered the hospital indicated a chronic infection of the urinary tract. Furthermore, he explained that the most likely source of the proteus organism was "a local source in the lower urinary tract, bladder, prostate, urethra, something of that nature." In other words the treatment itself, not the manner of its administration, was inherently capable of aggravating or diffusing the pre-existing infection. He then explained that when he testified that the proteus most likely was "introduced at the time of the urethral manipulation," he meant only that "the injury done to a urethra that is narrowed, by the passage of an instrument, makes it very susceptible for infection to develop, and it also, by virtue of opening up certain blood vessels, allows a place for these organisms to enter the blood stream readily." Thus his testimony was that the proteus organism was introduced into the blood stream at the time of the manipulation, not that it was brought into the body at that time. He specifically testified that he was not saying that unsterile instruments introduced the proteus organisms into Mr. Quick's system. The evidence is unequivocal on this point.
At best the testimony most favorable to appellant was that there were two possible theories as to source of the infection: unsterile instruments or the chronic infection already present in the lower urinary tract. Obviously, the jury could not be allowed to guess that the former was the source when appellant's own medical expert could not express an opinion to that effect. On the other hand, if it be assumed that the infection spread from a source in the urinary tract, a finding of negligence could only be predicated upon expert testimony that the procedure used by Dr. Thurston was improper in view of the symptoms of chronic infection. No such testimony was offered. Indeed, Dr. Maganzini testified that similar treatment was employed when decedent reached the hospital, and that breaking the stricture to open the urethral canal "is the simplest and the usual procedure." Thus, there was a total absence of any evidence from which the jury could have concluded that the instruments were unsterile or that the doctor was negligent in performing the treatment, or that he should not have performed the treatment. *fn1
Plaintiff suggests that the doctrine of res ipsa loquitur may fill this gap in the evidence. That doctrine, of course, is a common sense rule which allows an inference of negligence where the occurrence complained of ordinarily would not happen in the absence of negligence. See Safeway Stores, Inc. v. West, 86 U.S.App.D.C. 99, 180 F.2d 25, certiorari denied, 1950, 339 U.S. 952, 70 S. Ct. 840, 94 L. Ed. 1365; Prosser, Torts § 42 (1955).
There is no basis, in the record or in common experience, to warrant an inference that infection - or the spread of infection - follows this treatment only if there is negligence. The testimony of appellant's expert, Dr. Maganzini, discloses that there was an equal possibility that the treatment - as to which no negligence is shown - merely allowed germs already present in decedent's lower urinary tract to pass into the blood stream. The record shows decedent had long suffered from chronic pylonephritis or infection of the kidney. Dr. Thurston testified that the urine drained from decedent by the treatment, which was the usual way to relieve his condition, showed a kidney infection which was to be expected in view of the abnormal urinary retention. Thus, undisputed medical testimony shows us that negligence was not the only potential source of infection but simply one of several. Appellant's expert in turn confirmed this.
Due to the great variety of infections and complications which, despite all precautions and skill, sometimes follow accepted and standard medical treatment, courts reject the notion that because infection follows a treatment an inference of negligence is to be made. Moore v. Belt, 1950, 34 Cal.2d 525, 212 P.2d 509; Tallon v. Spellman, 1939, 302 Mass. 179, 19 N.E.2d 33. We think that rule sound. Moreover, it should be noted that here an infection preceded the operation and the operation of necessity invaded the infected area. Any suggestion that the proteus infection was a new infection and therefore one which must have been caused by external factors is totally without support in the record. *fn2 Only recently this court approved the ruling of the trial judge that the doctrine of res ipsa loquitur does not apply to a situation fairly comparable to that presented by this record. Johnston v. Rodis, 1958, 102 U.S.App.D.C. 209, 251 F.2d 917. See also Hohenthal v. Smith, ...