Hathorn v. Richmond

48 Vt. 557 | Vt. | 1876

The opinion of the court was delivered by

Pierpoint, Ch. J.

The questions in this case arise upon the requests of the plaintiff made to the court below to charge the jury, to the refusal of the court to so charge, and to the charge as given.

The first objection to the charge is in respect to the degree of skill and surgical knowledge which a surgeon is bound to possess and exercise in the discharge of his duty as a surgeon when called upon to act in that capacity and undertakes to do so. We think the rule as laid down by the court is substantially correct, and in accordance with.the well-settled law on the subject. There are certain expressions used in the charge which, taken by themselves, might seem to indicate a lower degree of skill than the law requires : but when the whole charge-is taken together, it clearly gives the true rule, and so distinctly that the jury could not have mistaken it.

The plaintiff requested the court to charge the jury, that “ if the defendant was employed only to reduce the fracture and set the limb, and in so doing applied the bandage too tightly, and in consequence thereof the injury occurred, the defendant is liable.” This request entirely ignores the question as to the degree of skill that was brought to bear and was exercised upon the occasion. It may be true, and in view of the testimony referred to in this case probably is, that the most skillful surgeon cannot tell the exact amount of pressure that should be brought to bear upon the broken limb by means of the bandages ; and if that could be determined, it might be still more difficult to determine after the bandages were applied, whether or not the right amount of pressure had been obtained. It may be a matter that can only be determined by experiment and time. The rule called for by the request, would require the surgeon to be infallible. We think this request was properly refused.

The question then arises, did the court charge correctly upon the subject of that • request; and here we have more difficulty. The court, after commenting upon the subject at considerable length, condensed the subject of their remark, and presented the rule to the jury in a manner that the court evidently intended the jury should, and they undoubtedly did, regard as the rule by which they were to be guided in coining to a verdict. Hence we do not feel at liberty to go back of the rule so given, even though it should seem to be somewhat in conflict with what had before been said. The court say :

“ I restate, passing over what I have already said, and putting to you now as a distinct point, though the elements of it are fulfilled in what I have already stated to you, - if Dr. Richmond was wanting in the exercise of proper skill in the tightness of the bandage, still, if his employment ceased when he had set and dressed the limb, and the case and the treatment of the limb fell into the hands of Dr. Ellis, and it was the duty of Dr. Ellis to discover that the bandage was too tight and ought to be loosened and redressed, and he ought to loosen it and redress the limb, if by so doing, by loosening the bandage and redressing the limb, the injury of the tight bandaging could have been prevented, then Dr. Richmond would not be liable for that injury.' If it would have become his duty in the position Dr. Ellis had, to have discovered' that the bandage was too tight, and to have loosened it and redressed the limb, and if by that the injury by the too tight bandage’would have been prevented, then Dr. Richmond would, not have been liable for the injury.”

This proposition presupposes that Dr. Richmond did not exercise proper care and skill in doing his work, and by reason thereof the limb was bandaged too tight; and from this it follows that if he had exercised the proper and required degree of skill, the limb would not have been bandaged too tight, hence the act of Dr. Richmond in bandaging the limb in the way he did, was a wrongful act. If the bandage was too tight, it must have been injuriously so, else it was not too tight. The extent of the injury, of course, would depend upon the length of time it so remained ; but the foundation was laid for a serious result, and every hour that the limb remained in that condition, brought that result so much the nearer. If the patient suffers pain from the outset, by reason of such too tight bandage, who is responsible for that ? Or if, for the same reason, it becomes necessary to call in another surgeon to relieve the patient from the effect of the wrongful act of the first, who is responsible for that ? Clearly, the party who has done that wrong; and is it any answer for the first surgeon to say, “ The second surgeon did not do his work any better than I did mine, if he had, the injury would have been less ” ? It is to be borne in mind that the question is not what the plaintiff is entitled to recover, but whether, upon the supposition stared in the charge, the plaintiff would ba entitled to recover at all, for merely nominal or any other damages. The question of damages is not before us, as no exceptions were taken to the charge in respect thereto, and the subject was not reached by the jury.

It would seem from the case as stated, that the whole injury that the plaintiff sustained, resulted directly from the tightness of the bandage as applied by the defendant. How far the defendant is relieved from the responsibility by the want of the exercise of proper skill by Dr. Ellis, is a question that was not passed upon by the court below, except to say that the neglect of Dr. Ellis as supposed in the charge, would operate as an entire discharge of the defendant from all liability, not only for the original wrongful act, but from all the injurious consequences that ultimately resulted therefrom.

The case was put to the jury in a manner that they would understand therefrom, that it was no injury to the plaintiff to put o'n the bandage too tight, and that no injury could ensue therefrom until such time as Dr. Ellis, in the exercise of proper care and skill, should have discovered the fact and relieved the plain-' tiff from the error negligently committed by the defendant, thus making the unskillful act of the defendant a matter of no importance in the case. The jury were not called upon to decide whether the defendant exercised proper skill of not, provided the jury found that Dr. Ellis did not exorcise proper skill in treating the case after the patient was left in his charge, even though injury may have ensued from the wrongful act of the defendant before Dr. Ellis could fairly be charged with a failure to exercise the care and skill that he was bound to exercise in the discharge of his duty to the patient as the attending surgeon.

We think the case should have been submitted' to the jury uir der proper instructions, to find whether the defendant was guilty of negligence and want of proper skill in the first instance in setting and dressing the limb. If the jury should find that he was, then, either that the defendant was liable for all the injury the plaintiff sustained, without reference to the misconduct or want of skill of Dr. Ellis, or else that he was liable for such injury as occurred from the wrongful act of the defendant before it became the duty of Dr. Ellis to intervene and relieve the patient from the consequences likely to ensue from the unskillful acts of the defendant. Which of these rules should be adopted, we have no occasion now to say. It does not appear that the jury have as yet passed upon the question whether or not the defendant was negligent or unskillful in setting and dressing the limb,' and no rule of damages has been propounded by the court or acted upon by the jury ; hence, no question in respect thereto arises upon the bill of exceptions. The matter has been discussed to some extent in the argument, but it will be in time to decide it when it ultimately arises.

Judgment reversed, and cause remanded.