Johns v. Pond

THE COURT.

This is an appeal from a judgment, taken .within sixty days after the entry thereof, in an action wherein the plaintiff sought damages against the defendant, a physician, for negligently,- and without occasion therefor, performing upon her a surgical operation.

The plaintiff alleges in her complaint that the defendant informed her that she bad a fallopian tumor, and operated' upon her for its removal, when in fact the symptoms diagnosed as indicating the presence of a tumor were caused by pregnancy; and that five months later she gave birth to a baby boy weighing nine and one-half pounds. , As a result of the operation plaintiff alleges that her health has been permanently injured, and that she has suffered, and will continue to suffer, more or less pain in body and mind. Upon these facts she bases her demand for damages, placing the amount at twenty-five thousand dollars.

The plaintiff was a witness in her own behalf, and we may paraphrase her testimony as follows: “I shall have been married four years in January, 1916, and have since my marriage lived with my husband. The defendant attended me during pregnancy and at the time of the birth of my first child

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in the month of January, 1914. Until just prior to the twenty-third day of December, 1914, I enjoyed good health. On that day I telephoned to the defendant to call on me, and when he came I told him that I had been having severe pains in my back and head and also in the pelvic region. I also informed the defendant that I had been examined by Dr. Somers of San Francisco, who said at the time of the examination that he thought I was pregnant five or six weeks. I further told him that I was having a scanty menstruation for almost a day each month. The defendant at that time in my home made what he called a bi-manual examination, and concluded that perhaps my uterus had not contracted after my first child was bom, but in any event he assured me that I was not pregnant, saying, ‘You are no more pregnant than I am.’ At that time he gave me a prescription which I was to use four or five days, and if it gave me no relief I was to let him know. A week or ten days later I called up the defendant and told him that the douche he had prescribed had given me no relief and that my suffering had in fact increased. He told me to call at his office the following day, which I did, and there, after making a more careful examination, he asked me my age. I told him I was twenty-two years old, whereupon he said, ‘Mrs. Johns, you are a very young woman, but I want to tell you that you have a fallopian tumor that is growing over the mouth of the uterus, ’ and that I would have to be operated upon at once; that as soon as the tumor should be removed I would be an entirely different woman. I consented to the operation. It was performed. A few days thereafter the defendant said I was in false, labor pains. I had bearing-down pains in the pelvic region. These pains grew worse and the defendant was sent for. When he called the nurse in attendance she told him that she thought I was going to miscarry. He made no replv but ordered some pills, and left word for them to be given to me as directed. He also ordered hypodermics, which were given to me often during the night, but I suffered intense pain and got no sleep until about 4 o’clock in the morning. In the morning about 9 o’clock the defendant informed me that I was trying to miscarry, that I was pregnant and about to feel life. I asked him why he had not performed an abortion, and told him that he had left me in such a condition that my child would be an idiot or deformed. He replied