107 Me. 376 | Me. | 1910
This is an action on the case against a physician for malpractice. The verdict was for the plaintiff”. The case comes up on the defendant’s motion for a new trial, and exceptions. We will first, as briefly as we may, state our conclusion under the motion.
In 1901 the plaintiff was treated by the defendant for what she terms "scrofulous glands of the neck,” and what the defendant says were enlarged "lymphatic nodes or glands.” They were on both sides of the neck. The defendant cut them out. In 1903 bunches again appeared on the neck, one on the right side under the chin, and the other, the plaintiff” says on the right side and the defendant says on the left side. The defendant diagnosed the trouble as being possibly Hodgkin’s Disease, and advised X-ray treatment. It turned out not to be Hodgkin’s Disease, but that is immaterial, because it is not questioned that X-ray treatment was proper for the real trouble.
The defendant himself administered the treatment three or four times, and afterwards it was administered by his office girl, as he says, under his direction. It was administered twenty-five times in all. The plaintiff” says it was administered three times a week for fifteen minutes each time; the defendant says, twice a week, for ten minutes each time. At each treatment the plaintiff was seated in a'chair, her head thrown back, and turned somewhat to the right, so as to expose the neck and under part of the chin. Her face
The measure of a physician’s legal responsibility has been stated many times by this court. He contracts with his patient that he has the ordinary skill of members of his profession in like situation, that he will exercise ordinary or reasonable care and diligence in his treatment of the case, and that he will use his best judgment in the application of his skill to the case. Patten v. Wiggin, 51 Maine, 594; Cayford v. Wilbur, 86 Maine, 4.14; Pamsdell v. Grady, 97 Maine, 319. The physician is not an insurer. He does not warrant favorable results. If he possesses ordinary skill, uses ordinary care, and applies his best judgment, he is not liable even for mistakes in judgment. Medical science is not yet, and probably never can be, in many respects, an exact, certain science. The practitioner cannot be expected to know, or be bound to diagnose correctly, that which is unknowable, as many of our hidden ailments may be.
The rule of liability is not a hard one, it is a reasonable one. And the burden is on the plaintiff to show a malpractice.
In this case it is conceded that the defendant is a physician of great learning and skill. There is no controversy ¿bout that. The plaintiff rests her claim to retain her verdict upon the proposition that the defendant failed to use ordinary care, which is reasonable care, and to apply his best judgment, in his treatment of her case. And while she specifies several particulars, we shall notice only one, namely, want of attention and watchfulness. She claims that the defendant did not give the proper and requisite attention to prevent the burning, and that the burning resulted in consequence.
The mere statement of these phases of the X-ray treatment shows clearly that it cannot be administered according to fixed and unvarying rules. All the medical witnesses concur in saying that it is necessary to watch for the manifestations of burning during the entire period of treatment. The treatment should be adjusted to the person and the exigencies of the case. The physician may vary or temporarily discontinue the treatment. He must watch, examine and use his best judgment. And this is what the plaintiff says the defendant here did not do. The defendant says that he did.
We do not undertake to analyze the testimony here. It is unnecessary. It is sufficient to say that if that offered by the plaintiff is true, she is entitled to hold her verdict. On the other hand, if the jury should have adopted the version of the defendant, the verdict is wrong. There is nothing in the plaintiff’s story which is inherently improbable or inconsistent. Unless the jui’y were not warranted in believing that story, the court cannot interfere. We cannot substitute our own impressions for any findings which the jury were authorized to make. While the burden was on the plaintiff to satisfy the jury of the defendant’s liability, the burden is now on the defendant to make it clearly appear to us that the verdict is clearly wrong. That he has failed to do.
The exceptions relate to instructions given and instructions refused on the question of damages. The defendant contends that the plaintiff’s mortification and distress of mind from the contemplation of her disfigured condition and of its effect upon her fellows is "too remote, indefinite and intangible to constitute an element of damages” in this case. And at the trial he requested the court so to rule. But the court refused the request, and instructed the jury that the plaintiff might recover for "mental chagrin, mortification and discomfort at her disfigurement.”
On this question the authorities are not agreed, and the rule of damages is not the same in all jurisdictions. In this State the question has never been before the Law Court. But at nisi prius, in cases where the mental suffering has been the direct and necessary consequence of the physical injury, the Justices have almost without exception given the rule which was given in this case.
There is good authority for the rule. In McDermott v. Severe, 202 U. S. 606, the trial Judge instructed the jury "to consider mental suffering, past and future, found to be the necessary consequence of the loss of the plaintiff’s leg.” It was objected that this instruction permitted a recovery for "future humiliation and embarrassment to mind and feelings because of the loss of the leg.” The court sustained the instruction, saying, "where such mental suffering is a direct and necessary consequence-of the physical injury, we think the jury may consider it.” So in Kennan v. Gilmer, 131 U. S. 22, the court said, "When the injury, whether caused by wilfulness or by negligence, produces mental as well as bodily anguish and suffering, independently of any extraneous considera
We hold, therefore, that when, as in this case, there is mental chagrin, mortification or discomfort at disfigurement, not independent of the physical injury, but the direct and natural consequence of it, the plaintiff may have damages awarded for it.
Motion and exceptions overruled.