*2 GRONER, Justice, Chief Before RUTLEDGE, Asso- EDGERTON ciate Justices.
RUTLEDGE, Associate Justice.
question
is whether
the evi-
dence
sufficient to sustain the verdict
judgment
plaintiff’s
favor.1 The
malpractice.
suit was for
Defendants are
physicians,
specializing
work.
They
treated
for removal of a
pilonidal cyst.
they gave
He claims
an overdose of
which caused him
injury.
question
arises
in two
negligence.
phases, causation and
Our
weigh the evidence fac
is not to
function
tually
jury does.
to decide
as the
made,
case,
plaintiff’s
whether
jury
enough for us to allow the
strong
apply
To
it.
do
consider
sufficiency
motion when all
evidence
similar
of his
in,
verdict
to set aside
questioned
and motion
a directed ver-
motion for
judgment.
plaintiff’s ease,
All were denied.
the end of
made at
dict
weigh
boundary
between substance
cannot
But we
some standard.
Men, including
Less
draw.
against defendants’.
shadow is hard to
judges,
always
How
differ
in concrete
preponderance
is sufficient.
than
abstractly.
one
Com cases. What
is substance to
less is
to state
much
hard
stand,
re
shadow
another.
cannot be
monly
weighed,
The line
the case
*3
substantial,2
magic
more than
drawn
of word
formula.
It
quired
a
or
to be
susceptible
is
scintilla,3
generalization.5
of
is
man
It
as a reasonable
always
ways
relevant
and the evi-
just different
the issues
All these are
believe.4
Hence,
particular
is dence in a
in the
saying
preponderance
less than
case.
of
end, kind of
be
a
evaluation must be
required, but
evidence should not
intuitive
made, that
not or
dangerous for the
the verdict does
thin that would be
it
judicial
justice.
not shock the
of
sense
jury to consider it.
may
cir
What
do
varies with
guarded
danger
be
case,
cumstances,
re
the nature of the
gross mis
is a too obvious and
against
spective
proof,
difficulties of
elements of
departure
a
too far
carriage
justice,
passion
prejudice' present,
or
etc. Ab
liability.
lines
Facts
established
sent
factors sufficient
them
emotional
function.
primarily
jury’s
within the
are
reversal,
selves
attacked
for
latitude,
given wide
Hence it must be
true,
goes,6
be taken as
so far as it
jury
But
becomes trial
'court.
trial
permissible inferences
drawn in
must be
is
the realm of
jury
absolute
its
weight,
Given maximum
it
favor.7
judges, jurors have weaknesses
fact. Like
judge,
must leave doubt in the mind
judges,
judgment.
Unlike
emotion
though
does
not convince
background
a
of decision
seldom have
right.8
verdict
experience against which to check them.
Malpractice
prove.
supplies
through ju
is
hard to
tradition
Our
physician
advantage
is
all of the
Exclusion of evidence
The
position.
has
dicial controls.
thin,
is, presumably,
expert.
is
He
side’s case
deter
an
When one
one.
patient
layman.
physician
is-
mining
“legal sufficiency” is another. The
its
factually,
sig
what
really
weighing
means
knows
is done
what
its
This
patient
may
conviction,
may
but for doubt
to the nificance. The
for
what is done. He
its
verdict sustained therefore know
seldom knows
outcome. The
significance.
judges chiefly by
jurors’
it is
re
represents
conviction that
He
patient
right.
physician
has
judge’s
sults.
right,
Refining
Bank, 1929,
2 Champlin
Walker,
v. Delmont State
Co. v.
8
Jerke
54
844; Heatherly
585,
7;
1940,
446,
Cir.,
v.
113 F.2d
223 N.W.
72 A.L.R.
S.D.
Washington Ry.
1939,
Co.,
Cir.,
106
v.
5
F.2d
& Electric Co.
Busch
Southern R.
Fast,
Cir.,
1924,
App.D.C. 353,
894;
1939,
er,
54
v.
8
103
F.2d
Co. v.
5; Updegraff,
1940,
844;
Walker,
Cir.,
(1898) c.
A
8
In
Evidence
113 F.2d
Legal
Determining
Technique
Thomas,
Cir.,
Liabil-
terstate
Power Co.
681;
Negligence (1941)
ity
27 Iowa
51 F.2d
Based on
A.L.R.
San
784;
Byram,
Cir.,
F.2d
dri v.
L.Rev.
coccyx.
under-
suspicion.
included the
over the
confidence,
against
disarmed
follicles,
lying cyst,
hair
to tes
constituted of
lawyers,
loath
are
Physicians,
like
surface, and
negli
leading
fistula
sinus
tify
has
fellow craftsman
skin, through
reputable
an
in the
highly
opening
ulcer or
especially when he
gent,
ulcer was
character,
discharged.
these de which matter
professional
small,
in diame-
one-fifth
inch
short,
physician has
In
fendants.
healthy.
proof.
surrounding
ter. The
knowledge and
advantage of
specialist.9
surgeon
Late
removal.
in 1935
advised
is a
when
This increases
required hospitalization
Surgery
slight evidence
might be
What
therefore
terruption
advantage, as
a view to avoid-
work. With
no such
when
defendant, Dr.
cases,
greater
ing
these
consulted
takes
ordinary negligence
therapy,
Merritt.
told
He advised
malpractice
suits.
weight
hand,
*4
plaintiff
charge.
worse than
the effect would
is a serious
be
malpractice
of health.10 a bad case of sunburn
would not
insurer
not an
physician is
The
terrupt
of
the standard
his work.
only for
He undertakes
prac
by others
possessed generally
skill
given
The
in two series.
were
treatments
field,11
care which
and for
ticing in his
first
four
in Decem-
given
The
included
in similar circumstances.12
give
would
1935;
ber,
second,
February,
eleven in
play
reason
for
of
He
have latitude
1936. The radiation
intended to de-
was
for
includes room
judgment, and this
able
Properly
stroy
follicles.
the hair
admin-
according
gross
or
errors
not too obvious
istered,
more
would cause “burn” a little
craft.
practice
his
prevailing
to the
sunburn,
severe than
shown
must be
Generally the standard
necrosis or destruction
tissue.
departure from
experts
and so must
The
lead-
treatments
in which the re
are cases
it.13 But there
lined room. The irradiated area was
treatment, con
surgical
or
sult medical
surrounding
one field
surface ulcer.
light
the circumstances
sidered in
governed
The
size of the area
it, may warrant
following
attending and
used,
square-shaped
portal
which was a
negligence.14
inference of
an
“cone,” seven centimeters
side.
mind,
things in
cast the
With these
adjusted
properly
the machine was
When
scales,
preponderance, but
for
patient, he
left alone in
should stand.
case
doubt whether
room,
the cumulative effect
because
upon
Undisputed
physician
or attendant
radiation
Background of
Facts.
I.
length of
harmful. The
would be
December,
years prior
several
For
automatically by an
ment was controlled
pilonidal cyst,
1935,
plaintiff had a
electric clock.
four times a
erupted
boil
like a
three
health,
treatments, plaintiff
good
After
suffered
was in
year.
he
Otherwise
exposed.
excruciating pain in
about his
the area
pounds, and went
weighing 187
beefsteak,
reddened,
pursuits.
cyst
like raw
with
usual
became
and other
work
middle,
spine, pus
through
out of
running
end of
located at the lower
D.C.
1910,
firmed, 1913,
127
Goode,
734, affirmed,
1910,
1920, 223 S.W.
1912C,
Care
Ct.
Surgical
gal
13
12
9 Rosenbaum,
[10]
11 Ibid.
L.Ed. 815.
J.
416,
Sweeney
Ibid.
Hamilton
Iowa
strongly,
Legally
57,
107 Me.
35
C.C.S.D.Ohio
1121;
57 L.Ed.
Specialist
App.D.C. 57,
456,
62,
228 U.S.
asserting
Required
1913,
Shockley
Defendants
103 N.W.
376,
v.
533;
Erving,
815;
Harris,
L.R.A..N.S.,
78
228 U.S.
Degree
1897,
Sweeney
A.
of a Medical
v.
Coombs
43
360; Ewing
1910,
holds
49 Medico-Le
rely upon
468,
Tucker,
sunburn, growth; nothing do greater; there some treat- overdose, except stop the treatments cancer, purpose is to ments, de- as for X-ray experts say yes, ob examination, and the other sir.” He I will tbis “third-degree jected ques burn response to the term to a was in The answer ray.” is not X He “That correct from a third- stated: necrosis comes tion whether really terminology. rays. isn’t degree There such . burn purpose expediting thing, for the but ointments; apply treatment from the bottom. Still has considerable * * * overdose, just pain was not an if toothache, like sharp does but on shown defendants’ Exhibit long.” last He stated ulcer trophic plaintiff n°t before saw application Dr. Belair stated a sufficient White; none surrounding area tissue; Xof would kill an overdose original ulcer September was necrosed on necrosis; frequently if causes there 9; only a small area was necrosed in De cember, 1935, and none of the necrosis, overdosage, were no no sur area rays destroyed follicles, heal- the hair ulcer; rounding June, the ulcer ing might require year eighteen inch, measured one-fifth healing of an years, months but not four and that there progressed extent; had Septem to an would not be a hole two-and-a-half small, her 4 the probably ulcer was three inches fourteen after months size; same “on one occasion we led were treatments; time, first that after such a to believe way were on to a suc all other factors were normal and there recovery”; cessful September, intervening (such tissue, there was no necrotic “unless the injection), presence the margins of the ulcer could con hole, sloughed where flesh away, had sidered necrotic tissue.” moisture remaining, would indicate an overdosage. Dr. Merritt plaintiff also Sep saw Hynes tember 9. again He did not see him until testified that if there is no overdose, October when he found in “an treated should not be stage necrosis”; advanced painful more than a severe the size of sunburn or increased, require ulcer had drugs relief, or narcotics “now measures for * * * 4x5 cm if there an considerable overdose forma- area of ulcer parts soft patient slough will tion, undergoes very off.”19 painful He experience may require narcotics; the situation plain before and after tiff overdosage went to compara cyst, an Dr. White “was not all”; ble plaintiff’s irradiated area the size of “the condition had should become up entirely clear trophic worse and quali- six weeks. there He was a ulcer area this, however, fied by stating enlarged in”; if an much and necrosis set present, ulcer were way would be no that without of some substance heal, to foretell how soon the ulcer the area could not have been necrosed as if: was- Plaintiff testified that Dr. Merritt It remains to set forth the defendants’ cu^ ou^ dead tissue on October 5 and said: concerning the condition of the There is good deal of tissue sloughing cyst from time to particularly in here and 1 t0 clean this also October, uP”i 1936, and the ef- that he said condition was worse than fects of surgeon’s injection of Ga- wllen l*e last saw it- briel’s solution. stated, As has been de- fendants attempt to show that Dr. Merritt refused directly to state improved gradually from time implied Dr. White’s treatment September, treatments 1936, but sud- “was incorrect for what [plaintiff] denly gravely became worse in the latter had,” say but did he would have advised part of that early October, month or against it. He testified that after injected, solution was and that condition (as it) October he saw “was injuries this caused the here. gotten elsewhere, due t0 treatment Consistently with this thesis ray”; Dr. Merritt not due to X that without denied the conversations with Mr. and of some substance the area could not have *9 July Mrs. Callahan in and the then; statements been necrosed as it was the necrosis they attributed to him. He testified that came from some treatment got between September 4, plaintiff, when he saw the the time he saw getting ulcer was better smaller. It again and the time saw on October ulcer, a filling was “small gradually 5; any injected agent would have injected His records for October 5 showed some one some substance into following entry: 5, 1936, the “October the lesion on either side with idea of the trophic ulcer; controlling pain. midline sacrum with un- This has increased size side, trophic durated zone on either ulcer, appears due to some and it now that injected anesthetic; parts substance local area considerable of the soft will slough has been seen and treated Dr. White off. The ulcer now measures 4 x * * * Tcnowledge, (Italics supplied) our 5 cm.”
83á (cid:127) experts’ testimony as “cold was based the necrosis in that water, anything injection, exclusively else.” Merritt alcohol on the facts as Dr. to His idea necrosis was stated them his version “was that due and assumes injection only gave argument the that else him.” true. And someone for entry competent testify His forth men record set are assumes October above, clearly implies was Dr. his the cause version was not contradicted sub- injection. White’s stantial evidence. supported Dr. Belair Dr. Merritt’s views assumption is erroneous. His state- injection, toas of the alcoholic effect ment of what place took is contradicted very opin- Hynes qualified gave but Dr. which, respects by crucial other evidence ion Both their concerning this. based true, destroys his if taken the effect of as opinions upon Merritt’s statement of Dr. only negli- views not on causation but on hypothetical questions the facts. in- gence own, in this case. With injection cluded factor un- of alcoholic falls, men other der circumstances identical that made they have the same factual founda- since according here to defendants’ version of tion. facts, plaintiff’s previous con- including dition. the basis of these assumed Defendants their case have constructed facts, opin- in his Belair testified that fails, theory so that if of causation their sloughing injection ion due to the fact, plaintiff’s prevail is —in solution; injec- that the of the Gabriel’s strengthened by their Plaintiff evidence. X-rayed any area tion of is solution respect agree and defendants in one vital inadvisable”; “definitely that Gabriel’s beyond —that he what incurred harm nat- injected solution into area could have development cyst ural sloughing; caused the that the would or did have caused appear normally in would four six cause. Defendants’ evidence em- is as one; weeks, might appear in that Ga- phatic respect. as in this is injected briel’s solution on one of the on the side essential element their case as infected other could come around area dispute made it. There therefore is side, upon quantity depending or, substantially, existence of harm used; but that he had known of agree as to its extent. Both that the sides injections familiar with made cyst stage an advanced of necrosis attained the infected proper X-ray treatment would rays. ed caused this. The difference have Hynes opinion injec- gave existed, controlling has when and this it tion of solution in the area would Gabriel’s in determining effect what its cause. sloughing, if aggravate the necrosis were prior says Septem- Plaintiff existed present, defi- already answer nitely whether it break down tissue would ber when the alcoholic already had not been necrosed. say exist made. Defendants it did not until after that time. IV. Causation. probable presents only The record two X-ray specialists who testified causes, rays injection.20 the X and the opinion gave their that the is no evidence There not have been not and could the cause injury brought in this case. As They attributed al- injury. presented, one the other it has say injection. Defendants coholic produced injury. There must have qualified experts testi- only X-ray pos record for a third no room on X-ray treatments and fy concerning their anything more than sibility con they conclude Hence there was effects. from the facts as jecture, disconnected sustain the verdict. no evidence They produced injury. Theoretically possibility third would rather, say, radiation without effect. But the two in combined be not have caused would made this the alcohol on the record as saying merely way in the therefore another *10 healing jection irradiated area which otherwise cause. Defendants do the gives rays says, deny and X had canse it. Plaintiff some ef- did not the they say show, to alcohol had no ef- it was “indi- evidence the But fect. They al- do not contend that the fect whatever. rect.” injected not irradiated into tissue cohol slough- proven injury did of Mrs. Callahan she observed If both sides.21 the 1936, the of ing spring in prior injection, not the summer or exist testimony that absence of direct medical have been the cause. If it existed before prior Septem- injection sloughing have did to the not occur could expressed rays year, done ber 1 of fears it and the X the finally evi- the their did, July, in and so. If there must have been Callahans case, sur- by resorting to overdosage. in dent concern shown The crucial issue the re- therefore, injury geons September, surgeons’ in the existed the whether operate of prior September danger fusal the comes us because of As it spreading it is there the whether is substantial evidence infection. showing that it did. Merritt’s the testimony regarding this, cyst early question. of, On there condition the in can plaintiff Hebb, testimony con- clashes with that directly of and his wife of Drs. progress from White He said the ulcer then cerning condition and Collins. small, early September squarely March con- was same size as the when began inch), flicts Their treatments (one-fifth with Dr. Merritt’s version. anof plaintiff’s trophic necrotic, support healing, has or in from filling view in constant bottom, pre- words, improving need the drugs, and use Dr. Merritt’s other them, way scription testimony apparently on the the the to re- well X-ray specialists however, covery. surgeons, found it radiation larger, cases of this kind creates no more harm much one to one- measuring from inches, trophic, than a bad sunburn does not and-a-half sur- sloughing narcotics, require testimony use of the rounded an inflamed and infected slight constantly, height evidence, There is to do so its elicited and reached injection surgeons, cross-examination of the before made. These conjunction experts, facts, from the that a taken in with the other cyst solely develop plaintiff could from evidence natural favorable to the set approximately degree above, clearly size, causes to forth established that symptoms rays probable and other were the cause. The plaintiff’s surgeons’ cyst though height, attained its at that a could surgeon stage one said reach such a from never seen one natural causes quite way. large develop under circumstances not this But defined and not cyst there is related shown no evidence to the facts to exist develop proof did in fact this manner. Nei- this ease is not it' did arise X-ray experts surgeons nor ther the from such fact causes in case. expressed opin- whether, evidence, plain- were asked In view whether cyst height that, defendants’, ions its arose tiff’s or the absence theory from natural causes. Such effort either side to show that natural would be in direct conflict with produce the theo- injury causes here or produced by ries and the evidence both possibility to connect that facts believed, evidence, Defendants’ if sides. case, the idea that the necrosis injury establishes that could not have height at its arose from natural causes is solely from arisen natural causes in this speculative possibility no more than a un- cyst It was to ease. the effect that proof. related the facts in Had though improved steadily, slowly, until more, it still would have been a mat- injection occurred, suddenly then be- jury’s judgment ter for the whether the worse, came much necrosis at its produced condition was so or was caused height have arisen ab- rays. necessary, is not ei- sence some inter- negligence, ther on causation or for They vening treatment. made no effort negative every speculative alternatively, prove, the maxi- possibility or to do more than establish prior mum condition existed upon prob- which he relies as a exclusively jection and came about able one. If on the evidence development. natural The reason probable cause, more than one is the plain would have discredited their —it jury’s to decide function between them. and their evidence that the view two, In this the X case there were was the cause. development solution. Natural by any plaintiff’s evidence, supported hand, the other probable believed, as a Of. notes 31 and establishes that be- cause. pronouncedly came worse and immediate- infra. ly X-ray treatments, after the continued *11 event, more, exposure exces- the must have been in such condition of two inches or that Drs. operate. and produce consequences ex- to sive the declined to which and Collins White isted. dia- surgeons differed respects Dr. Merritt and the in On the facts these the pro- Hebb, metrically there was against also as whether is White, to one of Dr. Merritt Drs. September and change between nounced the To and Callahans. Collins was, the stating sweep 5. He there testimony October said aside their insubstan- as cyst necrosis stage of was in an advanced five. tial would be to take of one to odds and on latter date. Collins the Drs. White All had opportunity observe the condition to there positively repeatedly that cyst and concerning at the times which period change or afterward testified, improve- was no in that symptoms to see they plaintiff or during contrary, the three months more ment or Dr. (except the and injection. remained under their care. Hebb) watch the effects of impeached None of ty credibili- them unequivocally surgeons The also stated testimony or otherwise. Their not and could the alcoholic solution substantial, only highly it was credible. injury occurred here. not cause the which point It necessary should not be out men ex- X-ray Dr. Merritt and the other pressed surgeons competent testify are as opinion. contrary, their methods and effects concerning in com- going further detailed Without produce, generally particular they or in the parison, only point out that need case, X-ray as men to testify are concern- sharp and in evidence is both conflict own, ing their or issue here is not that the respects: (1) following substantial in the rays, merely limited of the X the effects gradual- condition was Whether ly alternatively equally those but involves of the and prior to becoming worse or improving injection solution. We of Gabriel’s 1, 1936; September (2) the condition think, too, competent surgeons are as cyst as to size of the of infected general observe the condition necrosis, ulcer, and amount presence areas, testify to describe and concern- them healing; whether (3) whether was them, X-ray specialists. are does ing change these dates was substantial between X-ray therapy require knowledge 5; general and effects (4) October ulcer, open the size-of an deter- measure and causing Gabriel’s solution sloughing necrosis decreasing, mine is increasing whether areas; infected its effect (5) trophic ascertain whether it necrotic here; whether the (6) causing them sloughing. In or estimate amount of jection on one side of the infect- only made fact, upon relied the defense side, opposite ed area could over go Halley, X-ray expert, to show of the not an symmetrical as to cause the necrosis which cyst January, as condition place one rather than took surgeons fully quali- were at least only; the condition of the side cyst whether also, X-ray men, to state the fied as the injection was such that at the time of general effects of the solu- use Gabriel’s medically the solu- work contra to tion, shows the record were with which tion; Dr. Merritt stated to (8) whether not, X-ray and the men were familiar unfortunately July Mrs. Callahan sloughing,, causing and ob- much burn he had her husband too upon effects of report the actual serve and rays, him that he burned or X and to respect in this case. what he had to do was out all experts in thera- men up atrophic ulcer heal consequences. its But does py and burn. disqualify surgeons, are also who medi- respects the In these evidence for all experts, either as to testifying cal from directly contradicts Dr. Merritt’s knowledge common medical matters of of the facts. difference relation materials the use and effects methods right, If Dr. Merritt basic. ment was harm familiarizes them. their work beneficial, both the sur therefore that not have been caused think could We injec- rays, fully competent as Dr. Mer geons come from and must have were specialists to tes surgeons If the the Callahans ritt tion. cyst, theory tify the condition of right, concerning whole Merritt’s charac injection, exploded. and after case is before solution, conse it could have teristics of Gabriel’s its caused the harm and not have usual, quences, and to exposure. observe In that actual arisen *12 change only, symmetrically as Dr. curred on one side and state whether such a directly said as did place Merritt described when he it occur. Dr. took Collins stated enough it was suffi- that not clearly did. Their of the solution was used to mind, go way all cient to raise doubt lay a reasonable around. There was no evi- legal, thought as to the correctness of his dence to contradict Dr. Belair ver- this. respects around, way sion of the of the con- the solution all go facts all cerning injected quantity, if which conflict. in sufficient but qualified stating this his own unfami- version, inap- accepted, Their made liarity with of Gabriel’s the use solution plicable opinion to the case much of the respects. and in other The case is one X-ray specialists, given evidence by the jury, therefore whatever its which problem whose causal assumed views on the decision, expert disregard testimo- quiescent condition healing ul- ny that the lesion occurred could not which September cer before an immediate agency concerning have caused been thereafter, change and violent and an ad- Furthermore, which it was Dr. given. stage vanced of necrosis October 5. Shearer, surgeon, according testified that premises these they attributed the necrosis experience to his heal X-ray burns “can' injection, exonerated the just now,” e., man’s is i. at the time this premises inap- ments. The have been made said, of the trial. be We think cannot plicable opinions verdict. The found- law, X-ray experts’ as a matter of that the ed on fall with them. The them opinions weight carried re- so much specialists were not give asked to and did spect require accept jury as to them express opinions concerning what disregard surgeons’. injury, caused the if the condition which Merritt said existed on October did5 presented, As the case has been the evi- prior in fact exist 22. dence that the did not and could was, however, There apart some evidence injury not cause the is sufficient to establish facts stated by Merritt that rays the X did cause it. The record rays injury the X could not have caused the possible no other cause and there discloses which existed here. This consisted in the existence, explanation is no other for the opinions expressed by that if men injection, prior to the the necrosis rays cause, the X had been the exist, verdict, did to the according would have occurred at throughout one time But, though case. it is inconsistent with exposed forty-nine square area of cen portions given some evidence timers, height would reached its with defendants, there is other evidence that the days, in ninety and the tissue so lost would raysX could have caused and did cause the replaced by not have growth.22 been There X-ray experts necrosis here. All of the is no conflict as to the facts that overdosage rays testified that of X will sloughed area at its maximum not in ulcer; necrosis and cause necrotic exposed clude whole area and that the cyst requires treatment for lost replaced tissue has been to some ex “burn,” necrosis, enough but tent scar tissue. produce; severe more than sunburn will This evidence was highly convincing. no overdose and the that if reac- But we do not think it can normal, such up tion is clear will from three weight as a matter law as outweigh weeks, although all pres- to six if an ulcer is of the evidence in plaintiff. favor of To do would be no way ent there to foretell how require so would ignoring equally require. convinc- long healing Dr. Belair ing evidence in his behalf that the kind of overdosage, testified that if there were no necrosis which occurred necrosis, prior here existed destroyed and could follicles, not have been might require year healing hair it. There is no months, years, contra- eighteen four dicting the fact that the inject- solution was not be a hole there would two and one- ed on ulcer, one side of the months; and Drs. half inches after fourteen to three White and Collins testified that it could that after if all other factors beyond midline, go or more than half and there intervening were normal were no around, so that treatment, if the hole, necrosis had presence of such a solution, caused by the sloughed away, would have oc- where flesh had however, concerning See, Pohle, Principles the matter Theoretical of Roent healing, Gray, Attorneys’ gen Therapy Textbook ; (2d 1940) 844, of Medicine ed. *13 qualified not Hynes They to possible considered themselves overdosage. dicate an Dr. they do so. But did not exclude it the area treated as if overdose there is no cause, Collins, nar- and and require Drs. painful as to White not should be so history, plaintiff’s made relief, an over- a tenta- if there is view for but cotics experience diagnosis of tive “an infected and X- formation the dosage in ulcer ray burn, and a may require question narcotics. after it.” very painful mark and They cyst appropriately think he not also treated the for Dr. Merritt testified that though cyst, overdosage rays, of X with Dr. consulting the destroying he succeeded in thought on Merritt in recovery doing so. disclaimed at time he was Dr. White one plaintiff the con- way, whether had an concerning knowing but the evidence sup- burn, he also would but “I at the time of trial said: saw there dition port was matter, had been some sunburn in fact gen- the conclusion that and killed, statement tleman own had Dr. Merritt’s July, come un- something does would 1936, ray, if it believed der X and I to talked to Dr. Merritt for getting he made it. some salve treatment of ray.” X testified that Collins true, upon evidence, given it was This he have the the lesion was caused X could not told whether history negatived by plaintiff’s assumption, now rays, by but that verdict, to that necrosis evidence and the history plaintiff gave “very help- was by Dr. Merritt October the extent found ful.” September 22. prior to Con- did not exist 5 one, contrary sidered, however, on the Finally, testified, Mrs. Callahan that an weight the view overdose lends cross-examination, on direct that Dr. necro- rays and caused the given Xof was told her in July “unfortunately Merritt necrosis, view, sis. In that burn,” he Mr. given had Callahan too much stage, prior it existed inwas an advanced “unfortunately he had much too rays overdosage injection; of X to the ray,” right.” “he would be all Con it; does proper treatment can cause apart sidered from the other evidence sus sunburn; it, than severe more plaintiff’s case, taining contradicted ad overdose, normally the reaction there is no might not for mission be sufficient submit weeks, not up clear in three six should As to jury.23 the case this we ting required later, should not be and narcotics opinion. express conjunc no But taken If the pain. treatment were relieve evidence, it was entitled to tion with that follicles, hair heal- destroyed the weight.24 Mrs. Callahan’s veracity months, require eighteen but there might ing straightforward impeached. She awas of two and one-half be hole would seemingly honest She testi witness. months, ab- fourteen inches after three embarrassing unpleasant fied to facts adversely affective intervening sent acknowledge. physician busyA for her to jury as found the facts ment. On forget, years, four a tel easily could after evidence, and substantiated patient ephonic with a conversation effect on the no whatever injection had day’s of the routine. in the course wife cyst, there was a hole condition more like patient wife months, there fourteen after stated size it. The has elected to ly jury remember pain unbearable continu- intense and than rather Dr. Mer Callahan believe Mrs. year or more from time of ously for should not have say cannot We ritt. required treatments, narcotics were think, too, to do We so. been permitted Merritt prescribed were relieve an admission of want of statement reasonably inferable months, and it was That Dr. Merritt so construed proper care. killing the hair raysXthe succeeded made his denial shown it is it. Otherwise follicles. have rested well remem he did not statement that express upon positive surgeons did making it.25 injury. rays ber caused the opinion that the 387; Clifford, Excep v. Farnham 23 Morgan, N.E. as an 136 Admissions 468; 299, 1917, 101 A. Cas Hearsay Me. 116 Yale 30 Rule tion 1930, Garage, Maplewood op. supra 84 N. 355; Wigmore, v. well cit. 4 L.J. Chafee, 2094; 73 A.L.R. A. 1048; H. § 7 Id. § note Law, Progress 1919-1922 Ibid. following 428; record shows McKewen v. (1922) 35 Harv.L.Rev. by his 41; of defendant N.S., examination L.J.Exch., Cotching, direct 1857, 27 Radner, 1922, counsel: Mass. Zandan overdosage recited there could have been no On the evidence we jury justi degree which existed here length, we think prior ad defendants ex- fied that the 22. The concluding perts’ opinions overdosage of X the existence of concerning ministered an negligence the necrosis facts of cause of are consistent with the this was the pain constituted, given, attendant stated with injury. The evi expense, plaintiff’s vice in is that Dr. Merritt. The them clearly dence their these facts are consistent supporting verdict facts *14 injury existed before substantial. show that of solution was Gabriel’s Negligence. V. short, made. In all of the evidence which question jury’s sustains the on the finding necessary It not to discuss is causation, peculiar of in the circumstances except very briefly, upon further, evidence case, negligence. of this sustains it toas negligence. What has question of jury have found that the treat- of causation regard to the issue said given exactly ments were not as Dr. Mer- ample evidence sufficiently there shows were, that, they ritt testified unfortun- finding that the defend jury’s to sustain the ately, gave than amount more negligent. By the same evidence ants were cyst. of We cannot injury caused which establishes that the say support that the evidence to con-
by
rays, negligence is
overdosage of X
clusion was insubstantial.
proved.26
true,
appears
all
X-
That
is
notwithstanding
opposing view
ray experts
theory
negligence
testified the treatments
de- be based on the
proper.
by
He
be
only
Merritt were
treatments can
shown
di
by
scribed
spe
judgment upon
positive
his
knowl-
testimony
based
own
rect
negligence
edge
specific
the facts. The other
taking
and version of
cialists to
acts
upon
place
his statement
of the treatment. A
X-ray men based theirs
the course
facts,
required
by
heavy
not
those which
not
either
including
burden so
is
given,
negligence
treatments
but
those
general
described the
law of
consequences
plain-
Generally speaking,
Sweeney
which stated their
case.27
di
They
positive
specific
time to time.
testimony
tiff’s condition from
rect and
acts
required
qualified
negligence
their statements that the
is not
to establish
explicitly
it.
sufficient,
negligent
treatments were
condi-
evidence is
either
Circumstantial
tion that this would
so if the treatments
alone or in combination with direct evid
given exactly
actually
Dr. Merritt
evidence
ence.28 Circumstantial
con
they
true,
positive
stated
were. But if that were
tradict and overcome direct and
thority
ipsa
Textbook of
44. Because of this there
too much
his counsel
Callahan
ent
45 Harv.L.Rev.
sir,
han at
Callahan’s
27
26
Q. “Do
“Did
Q. imply
X-ray therapy
an exact
I did not.”
Cf.
Cf.
is
loquitur”
157 Tenn.
note 13
intended,
applying
any
Magruder,
that Dr.
you
over
deny making
you
treatment?”
Mr.
testimony,
regarded
time and tell her
rays.
Medicine
science.
remember
412,
ever talk
supra.
Callahan,
treatment?”
has reached the
Merritt
Book
“third-degree
Lewis v.
telephone
it as
7 S.W.2d
doctrine
Gray, Attorneys’
(2d
the admission.
talking
A.
Review
quotation,
was inconsist-
her
important
that he and
is
ed.
“No,
development
Mrs.
Casenburg,
much au
husband,
1940)
A.
of “res
to Mrs.
burns”
sir.”
Calla-
stage
“No,
you
Mr.
c.
2d
N.Y.S.
v.
853; Sears,
Inc., 1935,
L.R.
57
Y.
8áO
negligence
is on
its use
inference
drawn exclu-
limitation on
testimony.2 The
sively
consequence
reasona
of treatment
must be
from the
inferences drawn
requirement
no
character of the result. We have
ble.30 But there
ruled, therefore,
now,
circumstances,
the inferences
nor do
justify
positive
or mere
every
injury
injury by
fact of some
sought,
other
negative
negli-
so X
gives
is not
possible
inferring
The law
a basis for
conclusion.31
negli
proof
gence. The
requires
treating
that in
shows
exacting
“burn,”
e.,
clear
pilonidal cyst
injury,
some
i.
gence or causation
speculative necessary.
clearly
every
it also
shows that
it excludes
But
necrosis,
burn
theory.32
sufficient to
such as
here,
and,
existed
necessary
given,
deny
Sweeney
case does
is improper
Sweeney
treatment.
In
Indeed,
appears
go
principles.
these
injury
case there was
evidence that
recognizes
further
tham
do and
anything
consisted of
more than the amount
exceptional
the results of medical
cases
necessary
of burn which
for the treat-
*15
gross
surgical
so
treatment
be
in
necrosis,
ment. There
no evidence of
was
by
normally produced
departure from those
burn,”
or of “third-degree
or of a condi-
competent
proper
in
nothing
tion similar to these. There was
an
sufficient to sustain
themselves
are
more than
in this
what has
described
been
in
case
negligence. But
inference of
more,”
sunburn,
case as “the severe
but not
necessary
it
far and
go
is
so
accomplish
purpose
necessary
so, although
injury
not done
here
clearly
treatment.
case is therefore
evi
great, according
so
to defendants’ own
one,
distinguishable
present
from the
dence,
produced
that it could not have been
any
in
absence
evidence of some
by
X-ray
That
treatments.
possible
comparable
the al-
other
negatives
also
the conclusion
it
clearly
here,
scope
coholic solution
but also in
actually in this
natural
by
was caused
injury
and the absence
extent
development
cyst
regard
without
independent
the circumstantial evidence
cyst,
in the absence
treatment. That such
sup-
injury
of the character of the
which
treatment,
developed
might .have
ports the verdict in this case.
period of time
the same or some other
Unfortunately the case is one
it
prove
does
the same extent
which,
us,
is necessary
as it comes
tc
X
did not cause
or that
here
jury
ignor
justified
hold
jury
that the
merely
We hold
it to do so.
and,
respects,
un
ing important
some
justified in
character
considering
disputed testimony.
have been
That would
other
injury in
connection
whatever,
true,
could
its verdict. None
negligence
find that
existed.
evidence to
not have
rendered which would
have been
admission,
contradicted
Merritt’s
important,
and crucial
convincing
ignored
early
exist
injury did not
testimony that the
evidence,
think,
honest and
given,
as we
X-ray
testimony of the
September, the
just such
witnesses.
honorable
could
experts
injury
such an
required
keep
hands
treatment,
pre
cases
courts
by proper
caused
do so
We must
jury’s business.
ex off the
injury did
evidence that the
ponderant
here.
September,
things and
these
in early
ist
evidence which
circumstantial
all the other
is affirmed.
The judgment
stated,
to the charac
added
has
when
evidence which
result and the
ter of the
(dissent-
EDGERTON, Associate Justice
injury
probability
negatived
ing).
the solution
produced either
appellants,
appellee first consulted
When
development, made the
natural
comprised
cyst,
pilonidal
up-
had a
solely
one resting
more than
case much
affirmed, 1929,
48,
44,
250
Stevedoring
29
230 N.Y.S.
H.
Co. v. W.
Tucker
574,
Inc.,
1 Sweeney Erving, infra. appellants X-ray the ticular treatments which geons not, preparation for or do gave testimony that X-ray him. The're much become general practice, course of harm, no experience those treatments could experts; specialized study and n cause the no treatments could alleged state required. Apart particular appellee suffered. harm appellee and which appellant ments his Merritt doubtful, my jury opinion, denied, only It is wife, whether appellant which appellants’ treat- reasonably harm could find that tending to show sloughing, or oth- by ment caused necrosis might be caused appellee which X-ray geons suffered injury. er sur came from treatments sort knowledge of special disclaimed who not determine Negligence. But we need ever subject, person the diagnosed who question. appellants If did cause in actually appellee’s condition appellee, by jury giving him more “burn” said, surgeon caused who rayX him, it does not proved to be good than ray the X anything “I don’t know Causation is are liable. follow therapist, pilonidal cyst.” No thing, negligence is another. As one expressed, surgeon, physician and no case, “It was not have said trial, appellee’s present at the merely belief that the treatment enough to show ray. by X Testimo condition ny injurious, necessary go but it was occurred by, and that it not caused further, by competent and to witness show before, solution injection of Gabriel’s requisite skill care and was not es that testimony that it into cannot be translated words, ;3it” in other giving exercised in contrary, the ray. was caused X negligent. “Gen the treatment surgeons that Gabriel’s who testified same negligence erally speaking, no inference also harmless testified solution was they the result the treat can be drawn from the harm arose know how surgeon.” Specifi physician ment of infection, ulceration and cally, drawn from can be no such inference often appellee suffered occur results in in fact that at all. treated cysts have not been ruled that the fact jury. This court has *17 attributed appellant himself that fact of by ray negligence.” “no evidence injury is of does not solution appellee’s necrosis the to X-ray say therap if To that an 4 spontaneous devel a was not prove it that harm, neg have been he ist causes must been say but have opment ulcer must the as to ligent, of of mark is as wide by the X or by solution lawyer the loses a surgeon caused either a that a or who basic in the dichotomy ray. is negligent. Yet find no con I have effect; founded on testimony, Either it is opinion. that cession, to prevailing and no party words, a is assumption effect, that no acts that in other the erroneous2 to the n concluded testimony, has properly or it and rea appellants could his own which alleged attempting to treat Apart sonably from Merritt, done in have no foundation. and produced necrosis appellant which could have appellee of statements ; 4a abundant testimony any although there was sloughing denied, was no there given actually appellee testimony the treatment suf- that harm source that the consequences. par- produce such not be caused could or fered was 2 testimony. that, App.D.C. while Rosario, Merritt 69 Del v. Alamo intensity “any X-ray nec of an treatment F.2d 328. 98 essary produce App.D.C. 57, to fol of hair Erving, destruction Sweeney 3 35 * * * produce on other it burn a L.R.A.,N.S., licles will 63, 43 affirmed destroy properly if admin grounds tissue 57 33 will S.Ct. U.S. prop appealed to mean that I take this to istered.” L.Ed. 815. hair of for the destruction re er treatment court’s court, attacked trial regularly produce injury charge follicles, it will while of that fact fusal to general rule, burn, not, de x negligence a ray will (1) of evidence stroy that proof. did not state Merritt sus tissue. of We burden shifted Moreover, destroy court, will never judgment tissue. of trial it tained # equivalent plaintiff’s prop “proper is not treatment” both of and ruled that attempts give “proper It treatment.” unsound. were ositions knowledge practice pages 61, 62, App.D.C. Id., is common law, surgery, supplied). faultless (Italics as of L.R.A.,N.S., of medicine or produce bad opinion 4a results. prevailing sometimes acts attributes experts testimony no made Merritt men this is not true of treat claim be caused .proper ments. I find treatment. no Negligence, might produce much technically absence treatment “too called unreasonably burn”, care, slight, due prob- or reasonable so the risk was ability dangerous appel- reasonable conduct. benefit was so great, If prospects do appellants lee’s circumstances for treatment were they did, neg- bad, what their conduct that it was reasonable to take the ligent, pro- may whatever results it risk. undisputed appellee’s duced. It is con- testimony appellee’s Even if the wife treatment; cysts dition called for like ambiguous remark attributed to Mer- his, treated, are not likely interpreted ritt were as evidence that he necrosis; surgical lead to negligent, more than a would be no cure; certain and that scintilla of an testimony evidence. The therapy is a form of Not treatment. person alleged, de- interested to an only was there abundant that the nied, admission, standing extra-judicial particular X-ray appellants therapy which alone, weight. carries little tes- Admission administered the circumstances was in cor- timony, whoever gives “consisting ; rect there no contrary. evidence to the does repetition in the mere of oral state- words, In other evidence of ments, subject imperfection to much negligence. “Here there was no mistake; being party himself either that the instrument used the defendant misinformed, clearly or ex- not having repair, was out of exposures that the pressed his meaning, own witness frequent periods great too or of too du- having frequently misunderstood him. ration,” great intensity; of too or that also, happens, witness, by that the uninten- appellants failed make reasonable tionally expressions altering few of the quiry appellee’s into condition before or really used, an effect to gives the statement during treatment. “Neither is there completely party at variance with what evidence of of skill.”5 lack actually say.”7 Story, at cir- “ Justice Supreme Court has said that ‘When “ cuit, alleged said an admission ‘is plaintiff produces evidence that is con- evidence, all cases unsatisfactory most hypothesis sistent that the defend- account facility with which it ant negligent, is not and also with one fabricated, impossibility and the con- is, proof that he tends to establish nei- Besides, tradicting slightest it. mistake ”6 ther.’ premise It follows from that may totally failure of recollection alter alleged appellee’s Merritt’s statement ”8 the effect Dean declaration.’ wife, “unfortunately Mr. says: possibilities Wigmore great “The burn,” Callahan too much does tend to error in trusting recollection-testimo- *18 negligence. establish “too Giving much utterances, ny supposed oral of to have burn” is consistent not hy- with the heard, ignored.”9 been have never been pothesis negligence but with at least Mrs. able Callahan not even claim be hypotheses three which do not neg- involve quote the exact which Dr. Mer- ligence; words an (1) that instrument which was is, given” ritt used. “That he had chosen, inspected, used, carefully gave course, paraphrase. “Too much burn” “too much burn” failing to function also, occasion; was, normally evidently attempt repro- her appel- (2) that peculiarly susceptible said; lee ray, to X the substance of duce what was reasonably changed which could not on cross-examination she have been to “too dis- anticipated, ray.” covered or and the much X With best will received, attempt subject, particu- while could not harm a such an nor- world person, proved him; lapse mal larly too after a long large much for to a degree that there margin some of error. of risk that 5 Sweeney Erving, supra, App.D. McDonnell, 387, 254 v. 35 Webber Mass. v. 150 page alleged 63, L.R.A.,N.S., 43 C. at 189. A defendant’s 734. N.E. state my 6 Gunning “it Cooley, 90, ment fault” has 94, been v. 281 U.S. 231, held bar to direction of a 233, verdict 74 50 S.Ct. L.Ed. 720. Haglin, in his favor. Binewicz v. 103 Greenleaf, Evidence, ed., 7 15th 200. § 297, 271, 272, 273, Minn. 115 15 N.W. 8 pages Burnham, Smith v. 22 Eed.Cas. L.R.A.,N.S., 1096, 14 Ann.Cas. 225. Cf. 466, 13,019. No. Harris, Jones v. Wash. 210 P. alleged An admission the owner of a 22. horse that the horse was “mean” has support finding been Wigmore, Evidence, held insufficient ed., 3d Vol. VII dangerous. p. 468, 2094). he knew (§ horse was negligence is wife and recol- understanding lee’s to her A of evidence of scintilla ambiguous lection burden substance of enough to sustain proof alleged to have been made Mer- jury question.10 remark ritt, create wife, telephone, interpreted over the three one-half appellee’s testimony years before the trial. “Where evi- negligence, in conflict with as evidence of upon any sub- dence issue all on one side or evidence on that the entire mass of as to leave
ject.
appellants’
overwhelmingly
under-
on one side
propriety
is,
ray
the court
appellee
is clear. no room to doubt
the fact
taking to treat
what
give a
to the
peremptory
of their
should
instruction
correctness
appellants’
jury.”11 It follows that
motion
overwhelming. No reasonable
treatment is
outweighed by
a directed verdict should have
regard
the for
it as
jury could
appel-
disputed testimony
granted.
interested
11 Gunning
Capital
Co.,
Cooley,
281 U.S.
Transit
Jackson v.
231, 233,
App.D.C. 147,
50 S.Ct.
74 L.Ed.