19 Minn. 523 | Minn. | 1873
By the Court.
This is an action for malpractice, in which the complaint avers that the defendant, as a physician and surgeon, undertook “ to attend this plaintiff, and treat, dress, set, care for and endeavor to cure” plaintiff’s broken arm ; “ that the defendant then and there so negligently, carelessly and unskillfully behaved, conducted and governed himself in and about attending, dressing, setting amjl attempting to heal said plaintiff’s said limb, that for the want of attention, skill and care, and for the want of the proper application of splints, bandages and dressing, and for the want of the proper application of suitable remedies and medicine thereto, and by the improper application of bandages and splints, and by and thr'ough the mere neglect, default:, carelessness and unskillfulness of the said defendant in that behalf as physician and surgeon, the right hand of the plaintiff became dead and lifeless, and ceased to have the proper circulation of blood therein, and perished and was afterwards cut off by the defendant, above the said fracture of said forearm; that by reason of the said wrongful, negligent and unskillful conduct of the defendant in the premises, the plaintiff suffered and
The court at defendant’s request gave the jury the following instruction, viz.:—
“ The plaintiff claimed damages solely on account of the loss of his hand by neglect, default, carelessness and unskillfulness of defendant. Unless the jury shall find that the loss of the plaintiff’s hand was caused by such neglect, defaults carelessness, or unskillfulness, a verdict should be rendered for the defendant. The loss of the hand is the gist of the action, and unless that was caused by malpractice, your verdict' must be for the defendent.” To this instruction plaintiff excepted. The “ pain and anguish” are alleged to have been suffered and undergone, by reason of the said wrongful, negligent, and unskillful conduct of the defendant in the premises; that is to say, by the same wrongful, negligent, and unskillful conduct which is alleged to have , occasioned the perishing and loss of the hand. In other words, no other pain and anguish are complained of, except such as resulted from alleged wrongful, negligent, and unskillful conduct occasioning the loss of the hand. In this view of the complaint tlqe charge of the court would not seem to ■ be substantially or practically erroneous, for if the alleged wrongful, negligent and unskillful conduct occasioning the loss of the hand, and for which defendant was claimed to be liable, had no existence, (as the verdict has found) then there would be no such wrongful, negligent, and unskillful conduct as is alleged to have occasioned the pain and anguish complained of, and for which defendant would be liable. In addition to these considerations we are of opinion, from a perusal of the testimony, (which is all reported here) that the case was in fact tried below, and the evidence introduced upon the theory that the -meaning attributed to the complaint in the instruction referred to was
II. Evidence of the manner in which the amputation was performed was rightly excluded. The complaint charged no lack of care or skill in that respect.'
III. It is not important whether the question addressed to Dr. Hall, and objected to by plaintiff, was proper or improper. The witness made no answer responsive to the same.
IY. The facts communicated by plaintiff to Dr. Staples, (a regular physician and surgeon,) were, (as it appeared, affirmatively,) not “information acquired in attending” plaintiff as a “patient,” which was necessary to enable him (Staples,) to prescribe or act for plaintiff as such “patient.” The communication not being privileged, under subdiv. 4, sec. 10, ch. 73, Gen. St, was therefore properly permitted to be proved under the general rule prescribed by sec. 7 of the same chapter.
Judgment affirmed.