300 N.W. 791 | Minn. | 1941
The essential facts are undisputed. The father, accompanied by his father-in-law, took plaintiff, his infant son, to the defendant, a physician and surgeon of some ten years' experience, to be circumcised. The defendant, with his wife's aid, performed the operation, using an instrument called a circumcision clamp. The father and grandfather were called in immediately after the operation to see the result, and one of them remarked that it looked like a neat job. Before they left, defendant asked them to bring the child back in a few days, but, though the mother called and talked to defendant's wife about bleeding, the baby was never brought back as requested. Two weeks after the first operation they took the baby to another physician and surgeon, Dr. Peterson, who examined him and later performed another circumcision, also with a clamp. Dr. Peterson testified that the baby had a scar around and back from the end of his penis, that he cut through this scar tissue in performing his operation, and that he had found it necessary, because of the scar tissue, to dilate the skin of the organ after the operation.
1. The only question raised on appeal that need be considered is whether defendant was entitled to judgment notwithstanding the verdict. The duty or legal liability of a physician or surgeon in treating his patients is well settled in this state. Though he does not insure a good result, Staloch v. Holm,
First, in regard to skill, plaintiff introduced no evidence of the approved or standard method of performing a circumcision in that community, nor did he offer any evidence tending to show that defendant's methods were unskilful. His only expert witness refused to characterize defendant's surgery as either unskilful or negligent. Defendant testified that he performed the operation according to methods ordinarily used and approved in his locality, and his testimony was not contradicted or impeached. Thus plaintiff failed to prove that defendant did not use the required skill in operating on the boy.
Second, in regard to reasonable care, the only testimony describing the manner in which the operation was performed was produced by defendant. This testimony shows no lack of reasonable care, and there is no other proof of negligence. Thus plaintiff failed to establish a cause of action unless the doctrine of res ipsa loquitur may be successfully invoked by him.
2. Plaintiff argues that he had proved a fact situation entitling him to the benefit of the doctrine of res ipsaloquitur, which in a proper case has the effect, in the absence of evidence destroying the inference favorable to plaintiff, of saving him from a directed verdict for defendant. The application of the doctrine permits the trier of fact, in the absence of evidence of specific acts of negligence, to reason from the result back to the cause — to infer fault on the part of the person having control of some instrumentality from the failure of its operation to terminate in a safe or proper result when ordinarily a safe and proper result follows the exercise of care. Ryan v. St. Paul Union Depot Co. 168. Minn. 287,
A careful examination of the opinions and records in the Minnesota cases relied upon by defendant discloses that Moratzky v. Wirth,
3. This action was brought in the name of the father, title being, "George S. Johnson, as Father and Natural Guardian of David L. Johnson, a Minor." Though the statute, Mason St. 1927, § 9172, authorizing the suit, does not expressly require it, we have held that such an action should be brought in the name of the *249
minor as plaintiff. Gimmestad v. Rose Bros. Co. Inc.
The order is reversed with directions to enter judgment for defendant.