kerchiefs, was removed by defendant, leaving a wound in the cornea, and plaintiff testified that, following the removal, the doctor, with the patient's consent opened a pustule in the eye's lower lid and in using cotton to wipe away the pus spread some of it into the wound from which the steel had been taken, while the doctor denied ever opening any such pustule or spreading pus, it was held in Wood v Vroman (1921) 215 Mich 449, 184 NW 520, later app 226 Mich_625, 198 NW 228, that the plaintiff presented a case sufficient for the jury. However, the finding for plaintiff was reversed and a new trial ordered on procedural grounds.

In reversing a verdict for the plaintiff because of errors in admitting evidence, the court in Hunder v Rindlaub (1931) 61 ND 389, 237 NW 915, held that the negligence of an oculist in failing to remove a boy's left eye, which had been injured by a knife cut, in time to prevent a sympathetic infection of the right eye, causing its loss also, was a question for the jury where there was testimony by the boy's mother that the left eye had lost most of its fluid and had collapsed but the defendant refused to remove it in spite of her pleading with him to do so, and when she expressed concern over the weakened and inflamed condition of the uninjured right eye the defendant attributed it to a cold or some medicine in the eye and always made light of her worries, and testimony by the boy's family doctor, who had examined the eye after the injury and referred the case to the defendant specialist, that in the witness' opinion the eye had lost its sight and should have been removed. Medical experts, including the defendant, agreed that if the eye was as the boy's mother described, it should have been removed, but the defendant testified that the eye had not lost all of its fluids, that there was evidence of some ability to see, and that he repeatedly recommended its removal but that the boy's mother always refused to allow the operation, stating that she did not want her boy disfigured. Medical experts testified that the sympathetic infection could have been prevented by immediate removal of the left eye and the court held that whether the oculist's failure to remove the injured left eye proximately caused the loss of the right eye was a question for the jury.

In affirming a directed verdict for a physician specializing in treatment of the eye, ear, nose, and throat, the court in Jensen v Findley (1936) 17 Cal App 2d 536, 62 P2d 430, held that the doctor's failure to cap the patient's right eye to protect it from infection from the gonorrheal ophthalmia in the left eye was immaterial in that this omission could not have caused the loss of sight of the infected left eye. His failure to take a smear test of the pus from the left eye for diagnostic purposes was also held immaterial, since he had already made the correct diagnosis. The failure to hospitalize the patient was held not to render the doctor liable for malpractice where there was no evidence that standards of good practice of an eye specialist in his community required hospitalization for this disease, nor was his failure to use more energetic treatment where the plaintiff's expert did not condemn any portion of the defendant's treatment but only offered the opinion that the treatment used should have been more energetic.

In Rothschild v Barck (1930) 324 Mo 1121, 26 SW2d 760, an oculist was held not liable for the infection destroying the plaintiff's eye after an operation to remove a cataract where the evidence showed that the plaintiff did not see him sterilize his instruments or hands, but the oculist testified at length as to all his precautions to prevent infection, and medical experts approved of his method. The court rejected the plaintiff's contention that an instruction to the jury mentioning negligence would not be understood to include failure to use ordinary skill as well as failure to use ordinary care.

See also Curran v Holt (1918) 117 Me 369, 104 A 579, infra, § 7[b].

§ 7. Surgery.

[a] Injury from knives or other instruments.

Claims of injury caused by careless use of knives or other instruments in connection with eye surgery have been made in some cases. In several instances the evidence has been held to present a case for the jury.

A nonsuit was reversed in Colvin v Smith (1949) 275 App Div 1018, 91 NYS2d 713, and the patient was held to have established a prima facie case against a surgeon for malpractice in removing a cataract from the patient's eye where the evidence was that the patient was injured when she moved during the operation because she could feel pain, that her movement was caused by insufficient anesthetic, and that standard practice is to administer sufficient anesthetic to prevent such movement.

Evidence that the defendant physician, in probing for a foreign substance in the plaintiff's eye, punctured the eye so that the "eye water" ran out and down the

patient's cheek and left the eye blind, that the doctor on three occasions made admissions concerning his probing and the eye water running out, although, at the trial, he denied such probing, and that medical experts stated it was negligent and improper to probe the eye in such a manner, was held to make a case sufficient for submission to the jury although a judgment for the plaintiff was reversed and a new trial ordered on procedural grounds. Anderson v White (1921) 210 Mo App 275, 235 SW 834.

In Humphreys v Roberson (1935) 125 Tex 558, 83 SW2d 311, a physician's negilience in allowing an electric appliance he was using on the plaintiff's eyelid to touch and destroy the plaintiff's eyeball was held for the jury where the doctor, although denying the occurrence, admitted that such an act would be negligent. However, the court reversed a judgment for the plaintiff and ordered a new trial because of prejudicial argument by counsel, noting that the great weight of testimony was against the contention that the doctor touched the plaintiff's eyeball with the appliance.

Although involving negligent use of an instrument during examination of a tear duct rather than during surgery, see James v. Spear (1959) 170 Cal App 2d (Adv 24), 338 P2d 22, where the court reversed a nonsuit and held that a prima facie case of negligence was presented by evidence showing that on the plaintiff's 13th visit to defendant eye, ear, nose, and throat specialist for treatment of a clogged tear duct accessory to an eye otherwise in good condition and not under treatment, plaintiff "blacked out" while the doctor was examining her eye with an instrument; that the patient had had no anesthetic, had not experienced pain in that eye, had never before fainted, and there was expert opinion evidence that trauma to the eyeball could cause fainting, that when the patient regained consciousness she felt extreme pain in her eye, and the doctor, who was mopping her face with tissues, then administered anesthetic, applied salve, and put dark glasses on her; that after she left the office the pain continued, and she could not see with that eye, so she returned to the doctor who found an abrasion of the cornea and said: “it looks like a piece of steel had taken a cut * * * off the eye"; that about 3 weeks later plaintiff returned to the defendant who treated her 5 or 6 times and fitted her with glasses without charge; that the doctor explained to the patients daughter that during his examination he thought he saw something in the eye and took an instrument to look at it "when it happened," but his records, when shown to the patient's daughter, revealed only the patient's first visit and not her return that afternoon, although when produced at the trial they differed materially; and that there was opinion evidence that the abrasion could have been caused by any trauma, such as a surgical instrument striking the eye. The court said that considering the patient's blackout, her extreme pain, and the fact that her eye itself was not being treated, along with the doctor's admissions, the jury could have inferred that the abrasion of the cornea was proximately caused by the defendant while he was examining the eye with an instrument, and the court added that res ipsa loquitur was applicable, because this was an injury which did not normally occur without negligence, and the jury could have found that the patient did not contribute to the accident.

However, a patient was held in Cardinale v Kemp (1925) 309 Mo. 241, 274 SW 437, to have failed to make a prima facie case of malpractice against a physician for removing a cyst from the upper eyelid of an 18-month-old boy in such a manner as to cause the loss of his eye, where the evidence showed that after the operation on the lid of the eye, which had been in good condition, the eyeball was shrunken and sightless and joined to the upper eyelid by a mutual scar from a wound in the eyeball adjacent to the eyelid incision from which the cyst had been removed, and there was medical opinion testimony that an injury to the eyeball and a cut on the eyelid must have been near each other in time in order to have scarred and grown together, but there was no direct proof that the defendant cut the patient's eyeball. Questions to medical experts tending to elicit opinions as to the cause of the condition were held to have been properly excluded where the witnesses had not examined the eye until 8 months after the operation, the court adding that an offer of proof could have rendered the questions proper if it showed that the experts would give opinions in accordance with the plaintiff's theory of the case that such a condition was caused by the surgeon's negligent cutting of the eyeball during the operation to remove the cyst.

And in Peck v Hutchinson (1893) 88 Iowa 320, 55 NW 511, the court reversed a judgment for the plaintiff for the malpractice of an eye specialist who operated to remove an ucler without using anesthetic so that the patient flinched and the knife cut her cornea. Since there was doubt whether the knife cut or a preexisiting eye infection caused blindness in this eye, the judgment was reversed

because the jury's special finding that had the knife not slipped and cut the eye the plaintiff's sight would have been restored was not supported by the evidence, was material to the case, and must have influenced the verdict.

Holding that lay witnesses were properly permitted to testify as to the existence and location of a cut on plaintiff's eye following a cataract operation by defendant, the court in McLeod v Hicks (1932) 203 NC 130, 164 SE 617, held that even if it were established that defendant had negligently cut the eye in the course of the operation, the plaintiff was properly nonsuited since there was no expert testimony to show that this, rather than disease, caused the injury of which plaintiff complained, the subsequent loss of sight.

[b] Other cases.

In several other cases where a doctor's surgery was claimed to have been negligent, recovery has been denied where there was an insufficient showing of either negligence or proximate cause.

The fact that, following defendant's removal of a cataract from plaintiff's eye, glaucoma developed requiring the removal of the eye, was held in Ewing v. Goode (1897, CC Ohio) 78 F 442, not to justify any implication of negligence on defendant's part, the court noting that according to the expert evidence there was nothing to show that defendant had been negligent in performing the original operation, in failing to more promptly diagnose glaucoma when plaintiff complained of pain thereafter, or in performing a subsequent operation in an attempt to relieve the condition. Plaintiff's evidence was also held insufficient to show that any harmful results, other than those which were a natural consequence of the disease, flowed from defendant's conduct even if he were chargeable with negligence in leaving the city without referring plaintiff to another doctor for care. In holding the doctrine of res ipsa loquitur inapplicable to the case the court stated that if failure to cure were held to be evidence of negligence on the part of a physician or surgeon, few would be courageous enough to practice the healing art, and added that where a case concerns the highly specialized art of treating an eye for cataract or glaucoma, with respect to which a layman cannot be expected to have knowledge, court and jury must depend on expert evidence. The fact that a surgeon's operation upon the plaintiff's eye for the removal of a cataract proved unsuccessful and the eye operated upon became blind, and later the other eye, apparently from a sympathetic inflammation, also lost its sight, was held in Curran v. Holt (1918) 117 Me 369, 104 A 579, insufficient to charge the physician with malpractice, where there was no evidence in the case that he was negligent.

Where a plaintiff charged physicians with malpractice in performing surgery upon her eye and oxered no expert testimony to prove her case, the court in Pettigrew v Lewis (1891) 46 Kan 78, 26 P. 458, stated that to maintain her action, the plaintiff should have offered the evidence of skilled witnesses to show that the operation performed upon her eye was unskillful and was the cause of the subsequent weakness of the eye, because the question of the skillfulness of a surgical operation was one of science beyond the knowledge of the jurors. The court noted that it would have been easy for the plaintiff to have submitted to an examination by an experienced physician or oculist and to have offered the evidence upon the trial.

Approving various instructions as to the general standard of care required and as to the requirements of proof of causation, the court in Scarano v Schnoor (1958) 158 Cal App 2d 612, 323 P2d 178, 68 ALR2d 416, sustained the jury's verdict for the defendant ophthalmologist, where the evidence showed that the doctor chose, of three possible methods, an intracapsular extraction operation to correct a displaced lens of a 72-year-old girl and the operation improved her vision somewhat but later complications required a visual iridectomy and the girl was finally taken to another opthalmologist, who discovered inflammation, poor light perception, and a shrinking eyeball, eventually requiring the removal of the eye. Defendant's experts, completely agreed with his diagnosis, surgery,. and treatment, although the opthalmologist who removed the eye stated that he would not have performed the intracapsular extraction upon such a patient.

Evidence that the defendant surgeon removed a cyst from the plaintiff's eyelid and that the eyeball later became infected and has to be removed was held in Glover v Burke (1938) 23 Tenn App 350, 133 SW2d 611, insufficient to show that the doctor injured the eyeball in operating upon the eyelid in the absence of proof of any such injury or the cause of the infection. However, the doctor was held liable for negligently treating the infection which developed after theoperation. See § 6, supra.

The plaintiff's evidence was held in Stern v Lanng (1901) 106 La 738, 31 So 303, insufficient to charge an oculist with malpractice in removing a small tumor about the size of a pea from the plaintiff's lower eyelid in such a manner as to impair the vision in that eye, where the plaintiff testified that during the operation he felt a sharp pain in his eye which he believed was caused by acid injected into his eye and that he was never able to see out of that eye again, but defendant denied putting any acid in the plaintiff's eye and detailed the treatment that he did give, which treatment was approved by experts, who noted that plaintiff's loss of vision could have been caused by several other factors.

Where a patient became blind in one eye after an operation by the defendant oculist to correct a cross-eyed condition, and there was conflicting evidence as to the ability of that eye to see before the operation, the court in Feeney v Spalding (1896) 89 Me 111, 35 A 1027, held that a possibly poor result was insufficient grounds for recovery where there was no evidence that the oculist was negligent. Conflicting evidence of the doctor's negligence in treating the patient's eyes for cataracts and whether his actions caused the plaintiff's subsequent impairment of vision were held to have been properly resolved in favor of the doctor in Dellapenna v Irwin (1935) 291 Mass 221, 196 NE 839, and in instruction to the jury that to find liability they must find that the physician's negligence was the sole cause of the subsequent vision impairment was approved by the court, which stated that the conflicting evidence of the defendant's negligence allowed only three possible causes of the sight loss: natural causes, contributory negligence, and the doctor's negligence, and since the plaintiff may not recover for injury from natural causes or from his own negligence and since the only remaining cause for which he might recover is the defendant's negligence, then the instruction could not have been misunderstood, and the jury's verdict for the defendant was proper. In an action for malpractice against doctors and a hospital for negligence in diagnosis and in surgical attempts to remove a foreign object from the plaintiff's eye, it was held in Adams v Boyce (1940) 37 Cal App 2d 541, 99 P2d 1044, cert den 311 US 694, 85 L ed 449, 61 S Ct 137, that the plaintiff could not rely on the doctrine of res ipsa loquitur, but had to show by expert testimony that the defendants failed to use the degree of care and skill ordinarily exercised by other surgeons in the community.

See also Nye v Clark (1915) 193 Ill App 505 where a surgeon specializing in treatment of the eye, ear, nose, and throat was held not liable for malpractice in an unsuccessful attempt to graft skin into the plaintiff's eye socket so as to permit her to use an artificial eye, it appearing that three prior surgical attempts by others to do the same thing had all been failures.

But where the defendant ophthalmologist, while operating upon the plaintiff's eye, realized that one of the small metallic needles threaded with black silk which he had inserted into the incision was missing and made a search for it, but was unable to find it and closed the operation, and 11 days later located the needle by using X-ray equipment and removed it from the eye, with the result that the plaintiff lost the use of that eye, the court in Madis v Stellwagen (1951) 38 Wash 2d 1, 227 P2d 445, held that a case was presented for the jury and that a directed verdict for the defendant must be reversed because the jury had the right to infer that if the X-ray had been used before the operation was closed, the presence of the needle would have been discovered and it could have been removed, and the burden was upon the doctor to go forward with evidence rebutting this inference.

A claim of negligent surgery was an element in several other cases in this annotation.9

§ 8. Abandoning case or failing to recommend or supply competent doctor. The failure of a physician to attend to his patient or supply or recommend someone who can attend him must be unjustified and must cause injury to the patient before it can render the doctor liable,10

Where evidence was in dispute as to whether the defendant oculist's office girl referred his calls to another oculist during his temporary absence so as to provide the plaintiff with a competent physician, it was held in Ewing v Goode (1897, CC Ohio) 78 F 442, that even assuming the doctor's office girl was negligent in this respect, such negligence was not the cause of any damage to plaintiff, who was in good condition before the doctor left, and who developed glaucoma during

See Lanier v Trammell (1944) 207 Ark 372, 180 SW2d 818, supra, § 6; Semerjian v Stetson (1933) 284 Mass 510. 187 NE 829, supra § 5; Wood v Vroman (1921) 215 Mich 449, 184 NW 520, later app 226 Mich 625, 198 NW 228, supra, § 6: Rothschild v Barck (1930) 324 Mo 1121, 26 SW2d 760, supra, § 6. 10 See Liability of physician for lack of diligence in attending patient, 57 ALR2d 379.

ternal examination without using any instruments or drugs, and failed to discover a piece of tin nearly an inch long and about one-half inch wide lodged one-quarter of an inch below the surface of the eyelid within the orbit of the eye although investigation with a probe would have easily detected the object, and it should have been removed at the earliest possible moment but, becuase of the defendant's negligence, it remained buried in the eye for several weeks.

A judgment for an eye specialist was reversed and his liability for failing to discover a piece of steel embedded in the plaintiff's injured eye was held for the jury in Hoffman v Houston Clinic (1931, Tex Civ App) 41 SW2d 134, error dismd, where the evidence showed that the plaintiff's eye was injured by a piece of steel penetrating it, and by a piece of glass being embedded on its surface at nearly the same time. The doctor examined the eye with a magnifying glass and removed the glass but did not discover the steel. For 3 or 4 days the plaintiff repeatedly visited the doctor complaining of great pain, insisting that something was in his eye, later complaining of impaired vision, and finally the defendant took X-ray pictures of the eye, discovered the steel, and removed it, but only after infection had spread enough to necessitate the removal of the eyeball. It was the opinion of a medical expert and the defendant that standard practice required X-ray photographs to determine the presence of such a foreign substance, and the medical expert stated that each day and hour that the substance remained in the eye increased the chances of blindness.

A nonsuit was reversed and a prima facie case was held to have been presented in McBride v Saylin (1936) 6 Cal 2d 134, 56 P2d 941, by evidence that the patient consulted the defendant physician after having been struck in the eye by a nailhead, that the doctor examined the eye with a magnifying glass, found a lineal laceration of the cornea with air bubbles present, and removed some rust particles from the eye, but did not examine the laceration to see how far it extended or attempt to extract anything from the eye, only treating it several times by washing it out with boric acid and an Argyrol solution. Expert testimony showed that the defendant should have suspected that a foreign object had penetrated through the laceration, should have used an X-ray, which was available in his office, or an ophthalmoscope to determine whether any foreign object was present in the eye, and should have discovered the piece of steel, which was in fact embedded in the eye, having punctured the cornea, torn the iris and lodged in the vitreous humor, leaving scars and inflammation. Another physician using an ophthalmoscope discovered the object later and removed it in a 10-minute operation which was performed too late to save the sight of the eye. The court remarked that for an injury to an organ so delicate and important as an eye judicial notice could have been taken of the need for using X-ray photographs to assist a diagnosis if there had not been expert testimony upon the point, and added that the resulting delay while the patient submitted to eye-washing treatment before consulting the doctor who located and removed the steel could have been found to have proximately caused blindness in that eye, where an expert testified that the length of time the particle stayed in the eye contributed considerably to the loss of vision because of resulting inflammation.

See also Anderson v White (1921) 210 Mo App 275, 235 SW 834, infra, § 7[a], and Madis v Stellwagen (1951) 38 Wash 2d 1, 227 P2d 445, infra, § 7[b].

However, doctors have been held not liable where it was never satisfactorily established that diagnosis was improper or that it caused the patient any injury. The defendant oculist was held in Lippold v Kidd (1928) 126 Or 160, 269 P 210, 59 ALR 875, to have been negligent in omitting the ordinary practice of using an ophthalmoscope and X-ray to examine the patient's eye which had been injured by a sliver of steel, but where some experts testified that no treatment could have saved the plaintiff's eye after the steel had penetrated it and other experts, testifying that correct diagnosis and prompt treatment might have saved the eye, said it would be impossible to state what the chances for success might have been or by what standard they might have been measured, it was held that there was no sufficient showing that the negligent diagnosis was the proximate cause of the loss of the eye. The court stated that the doubt presented by this evidence could not have been resolved by the jury where any conclusion would have to have been a scientific finding requiring scientific knowledge of the eve.

A physician who was called to attend to the plaintiff's eyes which had been hit by sulfur dioxide gas from an exploding refrigerator was held in Peddicord v Lieser (1940) 5 Wash 2d 190, 105 P2d 5, not guilty of malpractice nor liable either for the patient's pain and suffering or for his subsequent blindness although there was evidence that the doctor failed to examine the eyes and administered no treatment, where expert testimony in the case conflicted sharply as to whether any

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