38 Mich. 501 | Mich. | 1878
This was an action of trespass on the case to recover damages for alleged negligence and want of skill of defendants who were surgeons, in their treatment of a severe injury to plaintiff’s hip.
Errors are assigned based upon the ruling of the court in relation to the admissibility of certain evidence, and these questions will first be considered.
It was claimed on the part of the defendants that plaintiff soon after being taken to Detroit, threw off the splints, got up and walked about on crutches. He was asked if he had not caused a letter to be written to Frank Curtis by one of the hospital nurses in Detroit to that effect, and replied thereto that he did not remember.
Dr. Walker, a witness, was asked if he remembered on one occasion when the plaintiff got up and threw off his splints, and replied that he did not of his own knowledge. Tie was then asked if in a conversation with Dr. McGraw at Detroit he did not state to him ‘that shortly after Burgett went to Detroit he threw off his splints and got up unbeknown to them who had charge of him.’ This was objected to, when counsel in reply to a question asked by the court, stated this question was asked for the purpose of showing what course the plaintiff himself took with reference to this injury, — to show in other words how a displacement might very easily have occurred. While it would have been proper to show that a displacement had or might have occurred in this way, yet the fact of the plaintiff’s getting up could not be proven in this manner. The witness having no personal knowledge of the fact, his statements upon that subject to others for the purpose claimed would be inadmissible.
John Blaney was present at the time Dr. Stillwell first examined the plaintiff, and assisted the doctor on that occasion. It became and was a material question on the trial, whether the injury was a dislocation of the hip joint with a fracture of the lower posterior rim of the acetabulum, or, as stated by others, a dislocation of the femur with the head of the bone in the ischiatic notch, or a fracture of the neck of the femur with the leg driven backwards. Dr. Stillwell concluded that, the injury was a fracture of the neck of the femur, and acted accordingly, although it seems the treatment in either case would be very much alike. The expert tes
The testimony of the witness Mason should not have been admitted.' This whole matter was collateral to the question at issue, and if counsel thought proper to examine Dr. Hitchcock in reference thereto, his answers were conclusive, and they were bound by them. Besides the evidence of Mason did not fairly tend to show that Dr. Hitchcock had not in fact received the information he claimed to have, but rather that if he had, it was
Dr. Webber, a physician and surgeon, was examined as a witness on the part of the plaintiff and testified to having made an examination of the plaintiff in the fall of 1873 at St. Luke’s hospital in the city of Detroit, and as to the condition in which he then found him. He ■was then asked: “Assuming that the leg was in good condition prior to the accident, what should you say to be the cause of the difficulty, as you found the patient last?” The objection made to this was that the witness could not answer the question without assuming certain
The question asked in this case was not so framed as to coniine the witness in giving an opinion, to the facts he had previously testified to, and to exclude all other influences, or knowledge that he might have possessed. Underwood v. Waldron, 33 Mich., 235. The mere fact that the answer did not go to the whole case, but only a portion of it, could not, as claimed, make any difference. The portion to which this did go was material, and if such a distinction could be drawn, but little protection could be afforded from an enforcement of the rule.
We now come to some of the more important and indeed the principal questions in the case, and a question is presented at the outset, whether there was any evidence in the case under which Dr. Hitchcock could be held or found liable. On the part of the plaintiffs in error it is claimed that the entire evidence bearing upon this part of the case is incorporated in the bill of exceptions, while on the part of the defendant this is denied.
The bill of exceptions is made up by taking each witness, apparently in the order in which they were examined, stating by whom called, followed by the name of the witness, “who being duly sworn, testified in substance.” — and then giving the substance of the testimony
The evidence bearing upon this branch of the case was as follows: “ Counsel for plaintiff, to further maintain said issue, called as a witness, George- E. Curtis, who testified that in 1873 he was superintendent of the South Haven branch of the Michigan Central railroad; that Dr. Hitchcock was surgeon of the road; that when Búrgett was hurt, Hitchcock was out of- town; that previous to his going he had stated to witness that if anything happened, Stillwell would look after it for him; that witness accordingly sent for Stillwell; don’t know as Dr. Stillwell said anything about taking Hitchcock’s place.” I can find no evidence tending to show that Dr. Hitchcock had, previous to the time plaintiff was injured, requested Dr. Stillwell to attend to any such cases, or that Dr. Stillwell had agreed so to do. Nor as the case stands should I consider such a request very material. It also appeared that on the third or fourth day after the injury Dr. Hitchcock returned, and being surgeon of the railroad took charge of the case; that Dr. Stillwell objected to leaving the case, and the plaintiff was also averse to his leaving, but Stillwell turned the case over to Dr. Hitchcock “upon an arrangement being made that they should remove the temporary dressings, and make a careful examination of the case, as soon as the swelling had abated so it could be done.”’ This was fixed for the ninth day, which was the time that the patient was removed to Detroit.
Counsel for defendants requested the court to charge the jury: “If the jury find that one of the defendants
This refusal to charge, and the charge as given, cannot under the evidence in this case be sustained. We are of opinion that the bill of exceptions fails to sot forth any evidence fairly tending to show an employment of Dr. Stillwell by Dr. Hitchcock, or any such relationship existing between them, growing out of either Dr. Hitchcock’s position as surgeon of the road and what he had said to the superintendent, or otherwise, under which he could properly be held liable for the négligence or unskilfullness of Dr. Stillwell. Taken at the best, the statement made by Dr. Hitchcock to the superintendent of the road, was but a mere recommendation, in no way binding the company to call Dr. Stillwell, or the latter to respond if called upon. Dr. Stillwell in treating the plaintiff fewas not acting for Dr. Hitchcock but for the railroad company, and was afterwards paid for his services by the company. It was right and proper that the physician of the company when about to be absent for a few days should inform the company of his pro
If Dr. Stillwell was not, in his treatment of the plaintiff, acting under such relations with Dr. Hitchcock as 'would render the latter responsible for his negligence and want of skill, if there were any such, then we can see no evidence under which Dr. Hitchcock could be held responsible at all. There is no evidence of any negligence or want of skill or care on the part of Dr. Hitchcock after his return and before the arrival of Dr. Walker from Detroit, If at the time of Dr.. Walker’s arrival the dislocation, if such it was, had not been properly reduced, that must have been the fault of Dr. Stillwell and not that of Dr. Hitchcock. If Dr. Hitchcock was guilty of negligence in not making a more thorough examination of the patient on his return, how much stronger may such an argument be used against the Detroit physicians, who made no thorough examination for some four weeks after the patient had been under their care, and not until he had called their attention to the discovery he had made. The fact is, as the case is presented upon this record, the Detroit physicians and Dr. Hitchcock, acting from all the information they had received from Dr. Stillwell and from the examinations which they made and considered sufficient, were justified in concluding
Other errors appear in the record, notably so that portion of the charge that the reasonable skill required to be exercised by a physician or surgeon is such as educated physicians or surgeons ordinarily exercise, taking into account the advanced state of the profession. That the advanced state of the profession should be considered was correct, but that the reasonable sidll required is such as educated physicians ordinarily exercise, was requiring and laying down too. high a test. This was singling out a particular branch, even after taking into account the advanced state of the profession as a whole, and requiring the defendant’s skill and diligence to be measured by that as a standard. What the standard or educated physicians was — the necessary qualifications of an educated physician — the court did not attempt to point out or define, and what standard the jury may have fixed upon, under such instructions, we have no means of knowing. Besides there was no evidence tending to show that the treatment by defendants was not' even according to the standard of educated physicians. In the present aspect of the case, however, it would seem unnecessary to discuss at length this or any of the other questions arising in the case.
The judgment must be reversed with costs and a new trial ordered.
Dr. Hitchcock had given the following testimony on cross-examination :
“It was brought to my knowledge at one time that Mr. Germaine Mason had charge of this ease as attorney for Burgett; I did not object to his bringing this action, — I think I made an objection, not particularly to the officers of the railroad company, but I hoped it would reach them, because I had ground of objection; I did not tell the officers of the company and protest against his bringing this action against me. I talked with Mr. Mason on the subject of the suit; Mason was acting as one of the attorneys for the Michigan Central Railroad, and I was then surgeon of the road.”
On re-direct examination he testified;
“I wrote the individual referred to that I was prepared to show by two individuals that Mr. Mason, acting as attorney for the Michigan Central Railroad Company had also acted as the attorney of the individual who claimed to have an action against the Michigan Central Railroad Company, and had settled with them for $2600 upon the basis that he should receive 33J per cent of it all.”
On re-cross-examination he testified :
“ The person I made the communication to was Dr. Jenks of Detroit, one of the officers of the road; he was not then surgeon-in-chief. ”
On farther cross-examination he testified that he had a talk with Mr. Mason about the time this suit was commenced; that Mr. Mason sent for him to come to his office.
“Did you not at that time say to him, you being in the employ of the Michigan Central Railroad Company, and he also, that there would be troublo if he went on with the case?"
“I did not.”
Mr. Mason was called as a witness by plaintiff’s counsel, Mr. Brown, who said:
“ If you have any statement in regard to your connection with the case of Burgett against the doctors and against the Michigan Central railway company, you make it, confining yourself to the matter which Dr. Hitchcock testified about.
The Court. “ You mean the matter of the conversation between them detailed by him with Mr. Mason.”
Mr. Brown. “Not only that, your Honor, but with regard to
*507 the matter which Dr. Hitchcock stated in his letter to Dr. Jenks.”
Mr. Severens (of defendant’s counsel). “As I understand it, it is about Mr. Mason’s share or participation in the settlement between the Michigan Central railway company and Burgett,”
The Court. “I don’t see how that would be material here."
Mr. Brown. “I will coniine it to a question or two, your Honor. ”
“Did you ever share in any manner in anything that Mr. Burgett may have received from the Michigan Central railway company?”
Mr. Turnor (of defendant’s counsel). “We object to it as immaterial.”
Mr. Brown. “Dr. Hitchcock said that he had, and I propose to show that is not true, and I offer it for that purpose and with this view, your Honor; the testimony was enquired of Dr. Hitchcock for the purpose of showing the improper means he had taken to defend himself in this case ; we sought to show on the cross-examination of that gentleman that he had made charges against a man for threatening to bring this action, for being employed by Mr. Burgett against him ; charges which I now propose to show wero false when he made them.”
Mr. • Turner. “ If your Honor please, Dr. Hitchcock did not state in his testimony that Mr. Mason had made such settlement, or had received such share, but that he had written to an officer of the company that he had been informed that Mr. Mason had acted for Burgett in the settlement and received a share of the money received from the company, and in any event the matter is irrelevant and immaterial and was drawn out on cross-examination against our objection.”
The objection was overruled, and counsel for defendants excepted.
“Did you receive anything from Mr. Burgett as payment for your services or advice or assistance in any manner against tho Michigan Central railway company?”
Mr. Mason. “Never, sir; nor never was any allusion made to anything of the kind; I never heard of it until I heard it rumored by the statement of Dr. Hitchcock; it is a most unjust, false and cruel statement towards me; I had a conversation at one time with Dr. Hitchcock with regard to my being employed in the case; it was at my office; Dr. Stillwell was present; Hitchcock raised the question of my acting as the attorney against him while he was surgeon of the road.”