Page images
PDF
EPUB

We hold that the provisions of subsection 12(f) do not apply to appellees in connection with their sales as merchandise. We are not required in this case to determine whether a person practicing optometry may engage in price advertising. Finding no error, the decree is affirmed.

Petition for rehearing denied.

ANNOTATION-68 A.L.R. (2d) 426

MALPRACTICE IN EYE TREATMENT AND SURGERY

(See ALR Digests, Physicians and Surgeons §§ 29, 29.2, 39.)

1. Scope and related matter, 428.

2. Background and summary, 428.

3. Diagnosis and examination, 430.

4. Poorly fitted eyeglasses, 434.

5. Placing a harmful medicine or substance in the eye, 435.

6. Spreading or causing infection, 438.

7. Surgery, 440.

§8. Abandoning case or failing to recommend or supply competent doctor, 443.

§ 9. Miscellaneous, 445.

Abandoning case, § 8.

Alcohol, treatment of eye with, § 5.

INDEX

Allergy to ether, death caused by, § 1.
Anesthetic, insufficiency of, § 7(a).
Antrum, infection of, § 6.

Atropine, treatment of eye with, §§ 8, 9.
Background, § 2.

Black eye, treatment of, § 9.

Butyn, treatment of eye with, § 9.

Carbolic acid, treatment of eye with, § 5.

Cataracts, negligence in treatment of, § 7[b].

Cement particles in eye, § 3[a].

Chair, injury caused by fall from, § 1.

Contributory negligence, § 3[a].

Corrosive sublimate, treatment of eye with, § 5.
Detached retina, failure to discover, § 3[c].
Diagnosis, § 3.

Druggist

negligence of, § 9.

standard of care required of, § 2.

Electric appliance, negligence in use of, § 7[a].

Eserine, treatment of eye with, § 5.

Ether, death caused by allergy to, § 1.

Evidence on question of standard of care, § 2.

Examination, § 3.

Expert testimony to establish standard of care, § 2.

Eye glasses, poor fitting of, § 4.

Fall caused by improperly fitted glasses, § 4.

Fall from chair, injury caused by, § 1.

Foreign substance in eye, §§ 3[a], 7[b].

Fraud as basis for action, §§ 2, 9.

French protein, treatment of eye with, § 9.
Glaucoma-

failure to diagnose, § 3[b].

surgery causing, § 7[b].

Gonorrheal ophthalmia, infection caused by, § 6.

Grafting skin into eye socket, § 7[b].

Hands, failure to wash or sterlize, § 6.

Harmful medicine or substance, use of, § 5.

Hospitalization, failure to recommend, § 8.

Hot applications, treatment of eye with, § 9.
Identity of patient, mistake as to, § 6.
Infection, §§ 3[a], 6, 7[b].

Intracapsular extraction operation, § 7[b].
Iodine, treatment of eye with, § 5.

[blocks in formation]

Recommending competent doctor, failure as to, § 8.

Removal of eye, failure as to, § 6.

Res ipso loquitur, §§ 2, 5, 7[b].

Scope of annotation, § 1.

Seriousness of eye operation, misrepresentation as to, § 9.
Spreading infection, § 6.

Standard of skill and care, § 2.

Statute of limitations, § 9.

Steel embedded in eye, §§ 3[a], 6.

Sterile instruments, failure to use, § 6.

Sulfur dioxide gas, injury to eye by, § 3[a].

Summary, § 2.

Supplying competent docotor, failure as to, § 8.

Surgery, generally, § 7.

Tear duct, treatment of, §§ 2, 6.

Tin embedded in eye, failure to find, § 3[a].

Tumor, retarding treatment of, § 8.

Typhoid fever, treatment for, § 8.

Ulcer caused by medicine, § 5.

Visual iridectomy, § 7[b].

Warranty of fitness, action based on, §§ 2, 4.

X-ray photographs, failure to use, § 3[a].

§ 1. Scope and related matter.

This annotation discusses cases involving malpractice in the treatment 2 of the eye.3

For forms of complaint in malpractice actions charging failure to use due care or skill in treatment or diagnosis, see 15 Am Jur Pleading and Practice Forms 15:971-15:973.

1 Included are charges of malpractice against any person undertaking to treat the eye, including specialists and general practitioners, optometrists, opticians, druggists, or nurses. Where agents are involved the question of the liability of the principal is distinct. See 41 Am Jur, Physicians and Surgeons §§ 112-114. 2 Treatment includes any medical act or neglect of which the eye or eyelid was the subject, but not treatment of nearby areas where the eye was only incidentally involved. See Simms v Gafney (195, Tex Civ App) 227 SW 2d 848, error ref n re, involving glass partially embedded in the brain behind the eye, and Waters v Crites (1942) 35 Mo 553, 166 SW2d 496, involving discolored skin under the eye. But treatment of a tear duct, as accessory to the eye, has been included. See James v Spear (1959) 170 Cal App 2d (Adv 24), 338 P2d 22, infra, § 7[a].

Cases have been excluded where the treatment being given to the eye was only incidental to the injury complained of. For example, see Yeager v Dunnavan (1946) 26 Wash 2d 559, 174 P2d 755, where the patient died because of an allergy to the ether used during an eye operation, Robinson v Campbell (1957) 95 Ga App 240, 97 SE2d 544, where the patient was injured by falling while attempting to get down from a chair 30 minutes after her eyes had been medicated in the doctor's office, and Gorlin v Master Contracting Corp. (1958) 15 Misc 2d 1, 180 NYS2d 84, where a hospital was charged with malpractice in giving an injection of tetanus antitoxin to a patient having an injured eye, and who, because of an allergy to the drug, became ill with serum poisoning.

Since 141 ALR 111 fully treats cases of malpractice for the injury of a baby's eyes in childbirth, such cases have not been duplicated here.

3 As to injury to the eye during treatment of some other portion of the body see ALR Digest, Physicians and Surgeons §§ 29 et seq.

§ 2. Background and summary.

The ordinary rules as to negligence, contributory negligence, and proximate cause 6 have been applied in the cases involving charges of malpractice in eve treatments, as in medical malpractice cases generally. The eye cases have held doctors of medicine to the usual standard of care, that is, that degree of skill and care ordinarily possessed and exercised by others of good standing in the same line of practice in the vicinity."

However, in addition to physicians and surgeons, the field of eye treatment includes practice by optometrists who treat the eye by measuring its visual acuity, using charts and other visual tests but are not permitted to use drugs. They may prescribe corrective eyeglasses on the basis of their findings, and are trained to recognize but not to treat common eye diseases and pathological conditions." The cases which have dealt with the liability of optometrists and opticians have applied to these practitioners a standard of care similar to that exacted of physicians, that is, that degree of skill and care ordinarily exercised by others in the same line of practice, 10 and this apparently includes the duty of recommending further treatment by a physician in a proper case.11

A similar standard has been applied to a druggist undertaking to give eye treatment.12

The eye cases have also recognized the ordinary rule that whether particular procedures satisfy the standard of care required of practitioners must usually be established by expert testimony, 13 although in some circumstances lay testimony on the issue may be competent.14 Likewise, the general rule that opinion testimony may be heard only from experts in the same school of medicine as the defendant has been followed in the eye cases.15

As in the other malpractice cases, 16 those involving eye treatment have consistently held that the res ipsa loquitur doctrine may not be used to supply the inference that a doctor was negligent merely because his treatment was unsuccessful.17

In most of the cases in this annotation the plaintiff has relied upon negligence as a theory of recovery, but the breach of an implied sales warranty of fitness for a disclosed purpose has also been advanced as a basis for the action is as has fraud.19

441 Am. Jur. Physicians and Surgeons § 79.

Contributory negligence or assumption of risk as defense in action against physician or surgeon for malpractice. 50 ALR2d 1043.

Proximate cause in malpractice cases. 13 ALR2d 11.

741 Am. Jur. Physicians and Surgeons § 82.

As to the standard of skill and care required of a specialist, see 59 ALR 1071.

Specialists in eye treatment and surgery are designated either oculists or ophthalmologists.

Opticians are eyeglass fitters and are versed in the mechanics of lenses but should not give treatment to the eye.

10 Alabama.-Hampton v Brackin's Jewelry & Optical Co. (1939) 237 Ala 212, 186 So 173, infra, §8; Gilbert v Louis Pizitz Dry Goods Co. (1939) 237 Ala. 249, 186 So 179, infra, § 4.

District of Columbia.-Evers v. Buxbaum (1958) 102 App DC 334, 253 F2d 356, infra, § 8.

Georgia.-Kahn v. Shaw (1941) 65 Ga App 563, 16SE2d 99, infra, § 4.

1 Hampton v. Brackin's Jewelry & Optical Co. (1939) 237 Ala 212, 186 So 173, and Evers v Buxbaum (1958) 102 App DC 334, 253 F2d 356 both infra, § 8.

12 Where a drugstore clerk was charged with negligence in dropping the wrong medicine into the plaintiff's eye and blinding it, the court held in Wadsworth v McRae Drug Co. (1943) 203 SC 543, 28 SE2d 417. that the druggist's duty was to use due care such as a person of ordinary reason and prudence would exercise in the circumstances, and that degree of knowledge, skill, and care required of a pharmacist or a manufacturing chemist which is ordinarily possessed and exercised by those in their special line of work.

13 See generally, Necessity of expert evidence to support an action for malpractice against a physician or surgeon, 141 ALR 5.

And see Pettigrew v Lewis (1891) 46 Kan 78, 26 P 458, infra, § 7[b]; Semerjian v Stetson (1933) 284 Mass 510, 187 NE 829, infra, § 5; Ewing v Goode (1897 CC Ohio) 78 F 442, infra § 7[b]; Peddicord v Lieser (1940) 5 Wash 2d 190, 105 P2d 5, infra, § 3[a].

14 See Lanier v Trammell (1944) 207 Ark 372, 180 SW2d 818, infra, § 6; McBride v Saylin (1936) 6 Cal 2d 134, 56 P2d 941, infra, 3[a]; Dean v Dyer (1944) 64 Cal App 2d 646, 149 P2d 288, infra, § 5; McLeod v Hicks (1932) 203 NC 130, 164 SE 617, infra, § 7[a]; Shives v Chamberlain (1942) 168 Or 676, 126 P2d 28, infra, $3[b]; Myrlie v Hill (1931) 58 SD 330, 236 NW 287, infra, § 5; James v Robertson (1911) 39 Utah 414, 117 P 1068, 2 NCCA 782, infra, § 5; Madis v Stellwagen (1951) 38 Wash 2d 1, 227 P2d 445, infra, § 7[b].

15 41 Am Jur Physicians and Surgeons § 130. But see Kahn v Shaw (1941) 65 Ga App 563, 16 SE2d 99, infra, § 4. where the court allowed an ophthalmogist to testify in a malpractice action against an optometrist. 16 Physicians and surgeons: presumption or inference of negligence in malpractice cases; res ipsa loquitur, 162 ALR 1265.

17 See 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, infra, § 7[b]; Semerjian v Stetson (1933) 284 Mass 510, 186 NE 829, infra, § 5; Ewing v Goode (1897, CC Ohio) 78 F 442, infra, § 7[b]. But see James v Spear (1959) 170 Cal App 2d (Adv 24), 338 P2d 22, infra, § 7[a], where res ipsa loquitur was held applicable to a case involving injury to a healthy eyeball during examination and treatment of the eye's tear duct.

18 Gilbert v Louis Pizitz Dry Goods Co. (1939) 237 Ala 249, 186 So 179, infra, § 4; Evers v Buxbaum (1958) » 102 App DC 334, 253 F2d 356, infra, § 8.

19 See Bernath v Le Fever (1937) 325 Pa 43, 189 A 342, infra, §).

Charges of malpractice in connection with eye treatment have arisen over a variety of circumstances. Failure to employ X-ray photographs 20 or some other standard diagnostic procedure has been charged as negligence. Patients have sometimes recovered for injuries from poorly fitted eyeglasses, and from the placing of a harmful medicine or substance in the eye by the practitioner giving them treatment. Practitioners who performed negligent eye surgery 4 or used unsterile technique have been held liable if they caused the patient injury. Doctors have also been charged with malpractice for failing to diligently attend to their eye patients, and optometrists and opticians have been held liable for failing to tell their customers that they should see a physician."

5

§ 3. Diagnosis and examination.

[a] Foreign substance in eye.

A number of cases applying the general rules discussed supra, § 2, have concluded that one undertaking to treat the eye could be found liable for malpractice in connection with improper diagnosis, including negligence in connection with the examination of an eye to detect foreign objects.

It was held in Kosak v Boyce (1924) 185 Wis 513, 201 NW 757, that an ophthalmologist was properly found negilgent in failing to use X-ray photographs in examining the plaintiff's eye for the presence of a foreign substance, where, when the plaintiff consulted him and complained of something in his eye after having been struck across the eye by a broken spring, the doctor inspected the eye, found a scratch across the center of the cornea of such character as to obstruct the vision and perhaps give the patient the feeling that something was in his eye, checked the vision of each eye, the pupils' reaction to light, and the tension of the eye, and, concluding that the cornea was not perforated, examined the interior of the eye with an ophthalmoscope, direct illumination, and oblique focal rays, noted that the anterior chamber was the same depth as in the other eye and there was no evidence of any injury to iris or lens, and no blood or foreign substance appeared. This examination was repeated several times when plaintiff continued to suffer pain and insisted that something was in his eye, and similar examinations were made several times by another ophthalmologist before X-ray photographs disclosed a minute piece of steel embedded in the eye. Expert testimony tended to show that the plaintiff's continued pain and complaints required X-ray photographs to be taken.

The court disapproved of, but declined to hold unfounded, a special finding by the jury that the doctor was negligent in the use of the instruments and means which he employed to ascertain the nature of the injury to the eye, especially in view of the great difficulty which the succeeding opthalmologist experienced in locating the foreign object in the plaintiff's eye. However, where some expert testimony tended to show that the lapse of time before the foreign substance was discovered and removed from the patient's eye did not contribute to the permanent impairment of his vision, the court held that the negligence of the ophthalmologist could not be found to have proximately caused the permanent injury to the plaintiff's eye even though one expert opinion indicated that had the minute bit of steel been immediately discovered and removed from the plaintiff's eye there would have been a good chance for recovery of "more or less useful vision," and as compared to its present condition such vision "would have been much better, I think." Because the defendant was properly found negligent in failing to use an X-ray to discover the foreign particle in the plaintiff's eye and permit its early removal, he was held liable for the pain which the plaintiff suffered until the particle was finally removed.

The negligence of an ophthalmologist in examining the eye of a boy who had been referred to him by a family physician, who stated his belief that an explosion had lodged a foreign substance in the eye, was held for the jury in Rann v Twitchel (1909) 82 Vt 79, 71 A 1045, 20 LRA NS 1030. where a directed verdict for the defendant was reversed upon evidence that while the boy was confined to a hospital and the doctor had a fair opportunity to examine the eye, he made no attempt to find out more of the history of its injury, gave it only a cursory, ex

20 See § 3[a], infra.

Questions as to liability for injury from X-rays used diagnostically or in treatments have been discussed at 41 ALR2d 329.

1 See § 3[b,c), infra.

And see Madis v Stellwagen (1951) 38 Wash 2d 1, 227 P2d 445, infra, § 7[b].

2 See § 4, infra.

See § 5, infra.

See § 7, infra.

See § 6, infra.

6.7 See §8, infra.

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

« PreviousContinue »