Dashiell v. Griffith
35 A. 1094
Md.
1896
Check Treatment
Roberts, J.,

delivered the opinion of the Court.

This appeal is from the judgment of the Baltimore City Court. The facts are, that Mrs. Griffith, one of the plaintiffs and wife 'of the other, was suffering from a disease commonly known as bone-felon, which was upon the index finger of her right hand. - She visited the office of the defendant, a practicing physician, for the purpose of obtaining his professional assistance; he gave the plaintiff medical attention as hereinafter' stated; this action is brought by plaintiffs, jointly as husband and wife, to recover damages for the alleged negligence of'the defendant in the treatment of the plaintiff, in consequence of which, it is claimed, the wife was obliged to have a portion of her finger amputated.

In the progress of the trial in the Court below the defendant reserved two exceptions, the first of which relates to the admissibility of certain proof; the other, to the refusal by the Court to grant the defendant’s first prayer. We will consider the exceptions in the order in which they appear in the record. The plaintiffs proved by Mrs. La Rose that she had nursed the plaintiff in her sickness' whilst suffering with the bone-felon, and went to her as nurse on the 17th of February, 1895, which was the day the finger was lanced by the defendant; that the incision made in the finger was a little over a quarter of an inch in length upon the surface, and then witness’ proceeded to say, “ When an incision is deep it always lays open.” This statement was objected to by the defendant, on the ground that such testimony was not legally admissible unless it be shown that witness was *377an expert and competent to testify in that character. For the purpose of ascertaining whether the witness was qualified to speak as an expert, she was .asked, ‘ ‘ how many cases of bone-felon she had nursed when the diseased part has been lanced or opened.” She replied, “that she might have nursed twenty or thirty cases and added, “ that she thought she had sufficient knowledge to give an opinion as to the depth of an incision from the size of the opening.” To the competency of the witness to testify as an expert upon the question of the depth of the incision from the size of the opening the defendant objected, but the Court overruled the objection and permitted the witness to testify as an expert.

The question presented by this exception is, we think, free of serious difficulty. The nurse who testified in this case had no other qualification entitling her to speak as an expert, than that she had nursed twenty or thirty cases of bone-felon where opening or lancing had been resorted to, and from the experience gained thereby, she thought she had sufficient knowledge to enable her to say as án expert, “ that in her opinion the finger was not cut half way to the bone.” This wound did not “lay open,” and there is nothing in the testimony which shows that she probed the wound or gave to it any internal examination. She simply saw that it was not open at its surface, and then indulged in the merest speculation as to its depth. It seems to us that if she had been a thoroughly skilled and competent expert, she would, under the existing circumstances of this case, have hesitated to express an opinion as to the depth of the incision made by the defendant. It is an unsafe practice in the admission of testimony to allow witnesses to speak as experts unless the Court is well satisfied that they possess the requisite qualifications; not alone on this account, but the effect of such testimony is most difficult to estimate, from the fact that undue importance not infrequently attaches to it and gives to it an influence upon the minds of a jury to which it is not fairly or reasonably entitled: An eminent *378author upon the law of evidence, quotes with approval the language of Lord Campbell in the Tracey Peerage case, io Cl. & Fin. 191, that “skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.” 1 Taylor on Evidence, sec. 58. Whilst there is. undoubtedly much truth in the observations of Mr. Taylor just quoted, we must not, however, be understood as intimating that there are not many cases to be found in which expert testimony has rendered valuable assistance- in the solution of difficult and important questions arising in the Courts for determination. Mr. Wharton, commenting upon the same subject, says, that the true distinction between, the expert and the non-expert is “that the non-expert testifies as to conclusions which may be verified by the adjudicating tribunal; the expert to conclusions which cannot be so verified. The non-expert gives the results of a process of reasoning familiar to every day life; the expert gives the results of a process of reasoning which can be mastered only by special scientists.” 1 Wharton on Evidence, sec. 434.

There is no evidence in the record which shows that Mrs. La Rose ever studied medicine or ever before had been called upon to investigate or inquire into the subject of the depth of incisions, judged solely by their surface indications. The mere fact that she had nursed twenty or thirty cases of bone-felon, without showing that she was possessed of any peculiar skill or knowledge in estimating the depth of incisions of like character with the one in question here, did not qualify her to speak as an expert, and we think there was manifest error in allowing her to do so. The rule allowing expert evidence will, in our opinion, be less objectionable and more conducive to justice if it be somewhat restricted, rather than relaxed. It is largely within the discretion of the trial Judge, but always subject to the opinion of the appellate Court. Baron de Bode’s case, 8 Q. B. 250-267; Di Sora v. Phillipps, 10 H. L. C. 624; Castrique v. Imrie, L. R. 4 E. & I. App. 434. We have, therefore, *379not hesitated to express our views upon the admissibility of such evidence, believing it to be properly reviewable by this Court.

The second exception arises from the refusal of the Court to grant the defendant’s first prayer. As already stated, this action is brought in the names of the husband and wife jointly, and if recovery is sought for the commission of an alleged tort against the wife only, the action is proper in form. Balto. City Pass. R. R. Co. v. Kemp, 61 Md. 74; Wolf v. Bauereis, 72 Md. 481. If, however, the suit has not been restricted to the recovery of damages growing out of the tort to the wife, but has been permitted to apply to and include damages for a breach of the contract of employment, the rule is different. The prayer refers especially to. the pleadings, and we must therefore determine the effect which they have had or should have had upon the trial in. the Court below. It is sought by the prayer to instruct the jury, that “ if they find from the evidence that the plaintiff, Mrs. Griffith, came to the defendant on February 17th, 1895, to be treated for a bone-felon, and that she returned on the 18th, 19th, 20th and 22d of February, and was treated on all of said days for said disease, and that the said plaintiff did not see the defendant after the 22d until after the amputation of her finger, then the jury are instructed that, in order to find a verdict for the plaintiff for the said amputation, they must find, under the pleadings, that the condition of her finger which made such amputation on March 2d necessary resulted from a disease which 'would have been cured by the exercise of ordinary and reasonable care on the part of the defendant on the aforesaid days, when he so treated the plaintiff, and not from any negligence of the said plaintiff after February 22d directly contributing thereto ; and the jury are further instructed that the burden of proof is on the plaintiff to prove the negligence of the defendant, and it is not permissible for them to infer negligence of the defendant merely from the bad condition of the finger of the plaintiff on or about the time *380of the amputation, apart from the othér circumstances of the case.” It is contended by the defendant that, tinder the pleadings, he could be held liable only for improperly treating the finger of the plaintiff on the days upon which he had seen her at his office, which were February the 17th, 18th, 19th, 20th and 22d, the plaintiff being an office patient and seen by the defendant only at his office on the days named. In consequence of the illness and death of defendant’s father he was continuously absent from his office, and did not again see plaintiff until after the finger had on March 2d been amputated. If the defendant had in his treatment of the finger, prior to the 24th of February, exercised reasonable care, skill and diligence, and then, because of the illness of his father, had turned the plaintiff over to Doctor Cockrell, a competent physician, for the further treatment of her finger, and the plaintiff refused to go to Doctor Cockrell for treatment, then the liability of the defendant ceased, and the plaintiff assumed to herself the consequence of any injury resulting from the neglect of her finger, for it cannot be said that the defendant, under any and all circumstances, was required to continue the treatment of the plaintiff If he provides for the further treatment of the patient in such manner as the defendant did in the case under consideration here, he has complied with every reasonable demand upon him. This Court has seldom, be it said to the credit of the profession, been required to pass upon questions of medical malpractice, but the law is settled in numerous well-considered cases, that a physician or surgeon who holds himself out to the world to practice his profession, by so doing impliedly contracts with those who employ him that he possesses a reasonable degree of care, skill and learning, and he is therefore bound to exercise and is liable for the want of reasonable care, skill and diligence, and he is responsible in damages arising as well from want of skill as from neglect in the application of skill. Long v. Morrison, 14 Ind. 595. The cases are generally agreed upon the proposition, that the amount of *381care, skill and diligence required is not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally. Patten v. Wiggins, 51 Me. 594; Tefft v. Wilcox, 6 Kansas, 46; Smothers v. Hanks, 34 Iowa, 286; Ritchey v. West, 23 Ill. 385; Leighton v. Sargent, 27 N. H. 460; Almond v. Nugent, 34 Iowa, 300; Graham v. Gautier, 21 Texas, 111.

We fully agree with the plaintiffs’ contention, that when a physician is employed to attend upon a sick person, his employment as well as the relation of physician and patient continues, in the absence of a stipulation to the contrary, as long as attention is required, and the physician or surgeon must exercise reasonable care in determining when the attendance may be properly and safely discontinued. Ballou v. Prescott, 64 Me. 305; Lawson v. Conaway, 37 W. Va. 159; A. C., 38 Am. St. Rep. 17. Whilst these cases seem to refer to the attention rendered by a physician or surgeon at the home of the patient, or where the physician or surgeon is compelled to leave his office to bestow such attention, yet, however, the principles of law controlling the right of recovery under such circumstances are practically the same. If an office patient fails to come to the office of the physician or surgeon whom he employs and from whom he has received careful and skillful treatment, and then fails to return to the office for further treatment, and in consequence thereof suffers injury, he is not entitled to maintain an action against the physician, because it is his own default and misfeasance. But we forbear further discussion of this question as the necessities of the case do not require it. Returning then briefly to the question of the pleadings: The declaration is founded upon the single allegation, that the “ actual misfeasance, negligence and want of skill” in the treatment of the finger of the plaintiff, which is alleged to have caused the injury complained of; yet the plaintiffs have not restricted their claim for damages within the scope of the pleadings, but seek to include in their recovery damages for the failure of the defendant to be present at his *382office on the 24th of February and thereafter, and render such services as the plaintiff’s finger may have required. No such recovery could be had under the pleadings for the reasons, first, that if a recovery is sought for, because of the failure of the defendant to attend at his office to render such service as he is claimed to have contracted to perform, such cause of action must be so laid in the declaration. Bemus v. Howard, 3 Watts, 255; and secondly, the plaintiffs cannot sue jointly as husband and wife, when the cause of action is the mere non-performance of a duty imposed by the contract of employment, which would be solely in right of the husband, and in which the wife could have no interest as a party to the action. It would result in an action wherein there would be a joinder of two inconsistent forms of action, the one ex delicto, the other ex contractu. The case of Longmead v. Holliday, 6 Exch. Repts. 761-7, which was an action by husband and wife against the defendant, who was the maker and seller of certain lamps, so-called “The Holliday Lamp;” the husband bought one of the lamps to be used by his wife and himself in his shop, the defendant warranted that the lamp was reasonably fit and proper for that purpose,, whereas the lamp was dangerous and unsafe, and when the wife attempted to use it it exploded and injured her. Parke, B., held “that the action could not be maintained by the wife, there being no misfeasance towards her, independently of the contract, which was with the husband alone.” In this view we fully concur, and think that there was error in the refusal to grant the defendant’s first prayer, notwithstanding the granting of his second prayer. For the reasons stated the judgment must be reversed.

(Decided December 3rd, 1896.)

Judgment reversed zvith costs, and new trial granted.