James v. Spear

VAN DYKE, P. J.

Plaintiff and appellant brought this action to recover damages from defendant and respondent (a physician practicing his specialty in eye, ear, nose and throat conditions) for alleged negligence resulting in injury to appellant’s right eye. Respondent was granted a nonsuit and the appeal is from the judgment following the order.

Appellant’s evidence discloses the following: Respondent undertook to treat a stopped tear duct, leading from appellant’s right eye so as to permit the duct to perform its function of draining lachrymal fluid from the eye. Appellant

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visited respondent 13 times for treatment of the duct. At no time did respondent treat plaintiff for any condition concerning the eyeball nor was there anything wrong with the eyeball. On the occasion of her thirteenth visit to respondent’s offices, it was respondent’s intention to make a final inspection of the tear duct and, if nothing wrong appeared, to discharge her as cured. Appellant sat in the treatment chair, respondent picked up an instrument, came to her and stood over her, examining her eye with a mirror and light on his head and the instrument in his hand. He had at that time applied no anesthetic to her eye. Appellant had no pain in her right eye. As respondent stood there examining her eye she lapsed into an unconscious state. As she described it, she “blacked out.” She had no explanation therefor, but had never had a fainting spell before. Trauma to the eyeball can cause a patient to faint. She was unable to say how long she remained unconscious, but when she regained consciousness she immediately felt a terrible pain in her right eye, which she could not open. With her left

eye

she saw respondent mopping her face with some tissues and rubbing off water. She was still in the same chair with respondent standing over her. She immediately complained to respondent of the extreme pain in her right eye and he began putting something around the eye to ease the pain. His office nurse ran in with a hypodermic needle, and respondent applied an anesthetic to her right eye. She could not see with the eye and it had a dead feeling. Respondent then applied salve to the eye, put dark glasses on her, and helped her out of the chair and to the outer office. She asked him what was wrong with her eye and he said it would be all right in 24 hours. Appellant left respondent’s office and went to a drugstore nearby and while there the pain in her eye grew worse. She went to a parking lot and sat in her car. The pain became unbearable and she returned to respondent’s office. He examined and washed out her right eye and told her “it looks like a piece of steel had taken a cut, a piece off the eye.” His examination revealed an abrasion of the cornea, that is, a break in the surface membrane of the eye. A corneal abrasion can be very painful. He injected a pain reliever and gave her prescriptions to lessen the pain. As she was leaving she told the nurse and respondent that she wanted to return. The nurse said “No.” Respondent said nothing. She went to the drugstore and got the prescriptions filled. Her eye was swollen shut. She went