168 N.W. 791 | N.D. | 1918
Lead Opinion
This is an appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial entered in the district court of Ward couuty in an action to recover damages for negligence in the treatment of an injured eye. The facts are as follows: .
The plaintiff, while engaged at his occupation as an engineer, on December 19, 1914, got a cinder in one of his eyes. After complet
The principal error relied upon for a reversal of the judgment is the refusal of the trial court to direct a verdict for the defendant on the ground of the insufficiency of the evidence to establish the negligence of the defendants. There is considerable conflict in the testimony relative to the time when the infection upon the plaintiff’s eyeball first became visible; also as to whether or not the plaintiff had been advised early in the progress of the treatment that he should go to Minot to Dr. McOannel, a specialist, for attention. In so far, however, as the evidence upon these matters may be regarded as having
“Kenmare, N. Dak., 5/8, 1915.
M. A. Borene, Sec.
Thief Biver Falls, Minn.
Dear Sir:—
This is to state that one M. A. Beardsley came to me on December 20th with a foreign body deeply embedded in the right eye, which was removed. The eye showed some infection at the time, which was very bad in a day or two, when he* was sent to Minneapolis for further care.
Tours truly,
John Ewing, M. D.
In explaining the above letter, Dr. Ewing testified that he wrote it for the purpose of helping the plaintiff out in an insurance matter. In the state of the testimony as to the first appearance of the infection, the jury could well have found, as it probably did find, that the eye bore appearance of infection at least as early as the morning of December 21st. As to advising the plaintiff to go to Minot for treatment with a specialist there, the jury could well have believed the plaintiff’s testimony when he denied that any such suggestion was made to him or direction given.
The issue on this phase of the case is thus narrowed down to the question of negligence in the treatment. The evidence offered by the
He testified, further, that one important fact bearing upon the indication of cautery is the location of the ulcer with reference to the pupil of the eye. To state it in his own words:
There is a line there that you can’t draw, there is a time when there is a balance, when it is very hard to say whether I shall use hot or cold applications on this eye or shall I cauterize it. If you cauterize, you have to make up your mind to one thing; that is, there is going to be a scar. If that nicer is on the center of the eyeball and a man comes in with that ulcer, shall I cauterize it or will it get well without? It might get well without it. Waiting until to-morrow morning or a few hours might not make much difference, but if it showed any sign of spreading you would then have to cauterize and take the scar as it comes.
Q. You have referred to hot or cold applications. Would that.
A. Before infiltration, no. If you use anything at all, your cold application would be best, but, as a rule, we don’t need anything when we take a cinder out of an eye.
Q. Just to get this matter as clear as we can, by infiltration just what do you mean ?
A. Infiltration is when this yellow matter begins to show on the eye, a yellow point begins to show as you have referred to.
Q. When the yellow point begins to show on the cornea at the point where the cinder or foreign substance has been removed, assuming that that point is not over the pupil of the eye, what is the proper practice ?
A. We usually wait to see what the developments are. We don’t want to cauterize unless it is necessary because we surely will have a scar.- On the other hand, we don’t want to neglect it if it needs some treatment, and about all we can do is to watch the eye at that stage of the game.
Q. After the infection is apparent?
A. Yes, it is possible that one can have a yellow point on the cornea and have it remain, and not spread, but we get worried if we see it; we tell him to come to-morrow morning early, we want to see him the first thing; and when he goes home to-night if he has pain to use hot applications on the eye if it keeps him awake. If it doesn’t keep him .awake but bothers some, keep it covered, but do not rub it. That is a very hard question that cannot be answered by any particular rule that can be laid down for treatment.
Q. After the removal of a cinder from the cornea, having used cocaine to deaden the sensation, what is the usual, ordinary, and proper practice relative to covering the eye by a bandage or other .appliance ?
A. In most cases we cover the eye.
As bearing further upon the nature of the infection and the proper practice in such a ease as the one at bar, the witness testified as follows :
Q. Is it, in any event, proper practice to allow an, ulcer such as the*382 one in this case, to spread from a mere pin point until the entire cornea is involved, or nearly so, before either sending the patient to a specialist or performing a cautery?
A. They spread so rapidly sometimes that over night you can have an ulcer involve almost the whole cornea. It depends upon how much infection there is. It just simply lifts the layers of the cornea right up and pushes everything in front of it. It may be very rapid, so rapid that there are no other ulcers that we see that worry us more than these.
Q. Assuming that at the initial visit to the physician, the physician discovered that there was infection in the wound, caused by the cinder in the cornea, is it usual, ordinary, or proper practice, having discovered the infection and knowing it to be there, to allow the patient to go out with his eye unbandaged and with no instructions other than if it bothered him to wash it out with boric acid ?
A. The eye should be covered if the infection has already started.
Q. And is it not proper when an ulcer is discovered to wait until there is sign of it spreading, before cauterizing, and take the chance that it may recover without any progression at all ?
A. We cauterize an ulcer'just as soon as we see it, providing it is in a location where we think it is not going to interfere with vision. We don’t take any chances. Sometimes we have to take a chance, and we tell the patient that they have an ulcer that we may have to cauterize, but we don’t like to do it unless a case of absolute necessity, and we will order them in the next day and tell them to be very careful, tell them all the consequences, and as a rule when you tell them all the dangers, with only a little foreign body as they think, they go to the other fellow; because they have had lots of cinders in their eyes before and this fellow is absolutely crazy.
He also testified that a general practitioner would be treading on pretty dangerous ground in taking chances on the spread of an infection after an ulcer of the cornea has developed. When the above testimony is considered in the light of the facts above mentioned and the further fact that the infection first appeared not over the pupil of the eye, but a little below, we are satisfied that there was evidence
The defendants, however, rely upon the rule that a physician is held only to the exercise of the skill and learning of the profession generally in the community in which he practises, and that there is no-evidence going to show that the defendants did not conform to such a standard of skill in the instant case. As we view the case, however, the defendants do not properly invoke the rule here. According to their own testimony, the defendants recognized the necessity of more expert treatment than general practitioners are capable of giving. It must be borne in mind that it was at the suggestion of Doctor Fred Ewing that the plaintiff ultimately went to Minneapolis for treatment by specialists, and according to the pathological conditions described by the witness and mentioned above, this direction should have been forthcoming from the defendants at least twenty-four hours before it was given. Furthermore, the testimony of the defendants Ewing themselves indicated that they were aware of the dangers incident to the spread of an infection of the character of that in question, and knew of the inefficiency of the ordinary so-called disinfectant eye-washes in the treatment of such cases. Yet, boric acid and argyrol were all that were prescribed by them, according to their own testimony. In this state of the record, the jury was justified in finding that the proper degree of care was not exercised in the instant case.
The appellants argue that error was committed in allowing the plaintiff to testify to the size of the abscess on the eye on the 22d of December, when Dr. Ewing looked at it, in comparison with the size of the scar as it appeared at the time of the trial. The objection was that the testimony was in the nature of a conclusion, inasmuch as the fact is one which called for expert testimony. This objection is clearly without merit, as it was competent for the plaintiff as a layman to give to the jury the benefit of his own observation. The abscess could, of course, be observed by him, as could also the scar with which ho was asked to compare the same.
It is contended that the court erred in permitting the plaintiff to testify that the railway company would no longer employ him as an engineer. This testimony was clearly competent, as the plaintiff would be in a position to know whether he would be permitted to con
The specifications of error based upon the refusal of the trial court to sustain objections to questions asked of the witness Dr. Benson are so obviously without merit that they require no discussion. The same is also true of the specifications relative to the sustaining of objections to certain questions asked of the defendants’ witness Dr. Kermott.
It is next insisted that errors were committed in getting before the jury suggestions bearing upon the interest and credibility of certain witnesses, which were improper by reason of their prejudicial tendency. These suggestions were presented in three different ways: "First, by a question directed to one of the defendants, Dr. Ewing, upon cross-examination, asking whether or not he was insured against loss in malpractice cases, and in also asking the same witness whether his brother was insured. The questions were objected to and the answers not given. The next alleged improper suggestion is contained in some questions asked of the witness Dr. Grogan, relative.to whether or not his expenses were met by the Northwestern Medical Association, and as to whether or not counsel for defendants were employed by the Northwestern Medical Association. Objections were also sustained to these questions. The third alleged improper suggestion complained of is a statement made by plaintiff’s counsel in his argument to the jury, wherein he said that “the manner in which these physicians stand together is disgraceful.” As the question of the prejudicial effect of the above stiggestions is presented upon this appeal, this court is confronted with the alternative of reversing a judgment in favor of the plaintiff wholly on account of the improper conduct of his attorney or of affirming the judgment entered upon a verdict which might have been more or less tainted with prejudice by reason of the alleged improper conduct. In determining this matter, we do not wish to be understood as in any way countenancing as proper, beyond the point herein indicated, any of the suggestions pointed out by the appellant. It is true that counsel for the respondent in his brief explained the reasons that led him to ask the questions and to make the statement to the jury; but this court is not inclined to consider the propriety of the questions upon any other basis than that consid
Whore a fair trial of .the issues in a damage suit is likely to be prejudiced by questions such as those pointed out, we are of the opinion that their correction lies largely in the discretion of the trial court. The trial judge, who has the advantage of the atmosphere of the trial, can best determine the extent of the threatened prejudice, and can take the necessary precautionary measures to insure a proper determination of the issues, — even to the extent of granting a new trial. Then, too, the defendant should not be given a free rein to speculate upon the verdict. If it is thought that the jury is prejudiced by reason of improper suggestions made during the trial, steps should be taken at once to secure another trial before another jury. That the interjection of such improper matter during the course of the trial is not, under all circumstances, reversible error, see Edwards v. Burke, 36 Wash. 107, 78 Pac. 610, 17 Am. Neg. Rep. 384; Shoe
The statement made during the argument to the jury, though a rather vigorous characterization of defendants’ witnesses, did not, in our opinion, pass beyond the bounds of legitimate argument. The jury could observe the extent to which the physicians who testified appeared to “stand together,” and it was perfectly proper that they should take this matter into consideration in deciding upon the weight to be given their testimony.
On the whole record, viewed in the light of the foregoing observations, we are constrained to hold that the conduct referred to does not amount to reversible error. The judgment of the trial court is in all things affirmed.
Dissenting Opinion
(dissenting). On December 19, 1914, at 3 o’clock p. m., the plaintiff, a locomotive engineer on a Soo train, got a cinder in his eye when nearing Minot. Though he stopped about an hour in Minot he did not have it removed. Ho went right on to Kenmare, where he resided, and before retiring tried to remove it with the burnt end of a match. Next morning at 10 or 11 a. m., he went to the defendants, and they quickly removed the cinder in a satisfactory manner. The next morning, December 21st, he went to the doctor’s office, got a prescription and used it. On the morning of December 23d, he saw Dr. Fred Ewing, who advised him to go to an eye specialist. He decided to go to the specialist of the company at Minneapolis though Dr. Ewing advised him to go to the eye specialist at Minot.
Dr. Grogan went with him to Minneapolis to care for him on the way. On arriving at Minneapolis, the eye was promptly operated on by Dr. Benson, the eye specialist of the company. The eyeball was saved, but the sight was lost. There is no claim that Dr. Benson is not a skilful and competent eye specialist, yet who can say that nature might not have saved the sight if there had been no operation on the
It is claimed that after the removal of the cinder the doctors were negligent in not bandaging the eye, and in not cauterizing the wound, and in not giving the plaintiff better advice. But the plaintiff was a locomotive engineer in the meridian of life, a person of years and experience, and presumably of good common sense and common knowledge, and the defendants could not be expected to treat him as if he were a child. Indeed, it seems he had a mind of his own, and when they advised him to go to the specialist at Minot, he insisted on going to Minneapolis. When the rush of infection set in, the plaintiff might have gained time and possibly saved his sight by going to the specialist at Minot or at Fargo; but it seems he was set on going to Minneapolis, to the best specialist, and in doing so of course he took the chances.
The witnesses called by the plaintiff were himself, his wife, each of the defendants, and Dr. Benson. They really gave no proof of negligence or malpractice, while the testimony of eight expert witnesses called by defendants show that the practice of the defendants was entirely proper. Perhaps the most important testimony was that of the specialist, Dr. Benson, who was called by the plaintiff. It clearly shows the uncertain results of even skilful eye surgery and treatment, and that the defendants were not to blame for failure to cauterize the eye.
Questions by counsel for plaintiff:
Q. Doctor, before infiltration has started, but after infection has been discovered, the only proper practice is cauterization ?
A. There is a line there that you can’t draw, there is a time when there is a balance, when it is very hard to say whether I shall use hot or cold applications on the eye, or shall I cauterize it, or will it get well without? If you cauterize you have to make up your mind to one thing; that is, there is going to be a scar.
As a rule we do not need anything when we take a cinder out of the eye.
Q. When a yellow point or infiltration begins to show on the cornea where the cinder has been removed, was it proper practice ?
A. We usually wait to see what the developments are. We don’t want to cauterize unless it is necessary, because we are sure to leave a scar. About all we can do is to watch the eye. This is a very hard question for me to answer without seeing a case. It is a question that cannot be answered by any particular rule that can be laid down for treatment.
Q. Infection from a wound is caused by direct contact with an infective agent? I don’t suppose we could examine the tears of any person that we do not find them full of germs. In the tears of a normal patient I suppose I would find many germs, any of which might set up an infection. That is why we all dread the operation for cataract; not because we are afraid of infection from our own hands or from the bandages that we use, but because we have that one source of infection, the tears from the tear sack.
Q. Hence, to prevent infection, is it not proper in operations to prescribe an eyewash ? ■
A. We very seldom do it, because patients will use a dropper, stick it into their vest pocket, later draw some medicine, .drop it into the eye, and get infection in that way. We give drops only to relieve irritation, not to prevent infection.
Q. In any event, is it proper practice to allow an ulcer — as in this case — to spread from a mere pinhead point until the entire cornea is enveloped before performing a cautery ?
A. They spread so rapidly sometimes, that over night you can have an ulcer involve nearly the whole cornea. It may be very rapid, so rapid that there are no other ulcers that we see that worry us more than these. There is a line you cannot draw as to when you should cover the eye and when you should not cover it. My experience with engineers is that they have so many cinders in their eyes and someone has taken them out with a tooth pick, it is pretty hard to persuade them to cover their eyes.
I have one ulcer that has just gotten well, where the ulcer came two
It is needless to cite the testimony of the eight expert witnesses called by defendants. They all concur in testifying to the effect that the treatment of the eye was entirely proper. In regard to the manner of sterlizing the eye spud used to remove the cinder, Dr. John Emery and Dr. Grogan both testified positively that before using the spud, it was put into carbolic acid from three to five minutes and into alcohol and left to evaporate.
Dr. Benson clearly shows that wounds in the eye may not safely be cauterized or disinfected like wounds in other parts of the body, and that cauterization of the eye is sure to leave a scar, and that it should be resorted to only as a last resource. He shows the extreme difficulty in drawing the line and determining when it is proper to cauterize. It is certain that his testimony was disappointing to the counsel who called him as á Avitness for plaintiff, and the expert medical testimony was all against them. Hence, they argued to the jury in effect that the doctors were a bad lot; that they all stood together and contributed to an insurance against loss from malpractice. And, of course, that was gross error.
Clearly the judgment should be reversed and the action dismissed, because from the record it appears that there can be no evidence to sustain a verdict for the plaintiff.
Concurrence Opinion
I concur in the result.
