18 Or. 307 | Or. | 1890
The grounds upon which, the appellant claims a reversal of the judgment appealed from are mainly that the circuit court erred in its refusal to non-suit the respondent upon motion of appellant’s counsel, made at the trial; that it erred in permitting the respondent's counsel to inquire of their own witness, Dr. W. E. Rinehart, at the trial, if, at a certain time and place, in the presence of J. Y. Bridges and wife, he did not say, in reference to an operation performed by appellant upon respondent, in which a growth had been removed from the neck of the womb, “It was a bad job. Mrs. Langford had no cancer; it was a growth on the womb, prevalent in the case of pregnant women, and she could have been operated upon on his table in the doctor’s office for a small fee, and have gone about her business at once, ” or words to that effect, and in allowing the testimony of said witness to be contradicted upon that point, and the said J. V. Bridges to testify that the witness made such statement. And that the court also erred in giving certain instructions to the jury, which are hereafter more particularly referred to. The first and most important question to be considered is the one arising upon the motion for a non-suit.
It appears from the pleadings in the case, and the bill of exceptions contained in the transcript, that the respondent, on the twenty-second day of November, 1887, applied to appellant as a surgeon and physician for medical treatment. The respondent was a married lady, was the wife of Mr. George Langford, who has been a resident of the city of Portland for a number of year’s past; that she had given birth to three children, two of whom were then living, and she had also had two miscarriages. It appears that she had been suffering more or less for a long time from an affection of the womb; that the neck of it had been lacerated in giving birth to her eldest child, a boy, who at the time of her application to the appellant for treatment was about sixteen years of age; that the difficulty at times had occasioned excessive hemorrhage, and been a source of great annoyance and suffering; that some six or seven
Another physician, Mrs. Dr. Hunt, had treated respondent from February, 1887, until in April of that year, and had called in as consultant Dr. Kenneth McKenzie. Mrs. Dr. Hunt testified as a witness upon the stand that the respondent came to her office in February, 1887, complaining of frequent, irregular, profuse hemorrhage, exhaustion and pain, and that she found, upon a digital examination, a growth on the side of the uterus about the size of a dollar; that the most gentle touch of it gave pain and caused great hemorrhage, so much so that it filled the wit ness’s hand and ran down her arm when she made the examination; that she called in counsel, at the request of the respondent, to know whether it was really malignant growth or benign growth, and with a view to an operation; that respondent was twice in her office, once the last of March, and once, she thought, about the seventh or eighth of April; that they gave her an anaesthetic and removed a small piece of the growth, which was sent to Dr. Kelley for microscopical examination; that they found one-third
Dr. McKenzie, the consultant with Mrs. Dr. Hunt, gave testimony as a witness in the case which fully corroborated the testimony of the latter in regard to the condition of the respondent and the extent and severity of her affliction at the time. He testified: “We made a careful examination and found a large excrescence, or growth, projecting from the posterior lip of the womb, the surface of which was soft and friable, readily broken down, and bled at the slightest touch. ” This seems to have been the condition the respondent was in six months prior to her application to appellant for treatment, and, in all human probability, the disease had made alarming progress during that time, although the respondent appears to have been inclined to represent her general health as favorable as possible. The turdor, however, was there, still developing and exhibiting more marked indications that it was of a malignant type. ■ The respondent testified that the appellant, when he examined her, pronounced it a cancer, and said that an operation was necessary, and the sooner performed the better.
The appellant himself téstified that she then looked weak and feeble, was short of breath, complained of pains at the lower part of the abdomen, of tenderness when she
Down to this point in the history of the case, as shown by the testimony, there is no proof whatever which would authorize a recovery in favor of the respondent. There can not be even a pretense that the appellant thus far, in his treatment of the respondent, in any particular neglected his duty. That the respondent was seriously ill there can be no doubt, and her disease was of a character which demanded prompt and skillful attention. It was making progress and would soon undermine her constitution, if it had not already done so. The removal of the tumor was skillfully and successfully accomplished, and the parts affected in consequence thereof properly adjusted and treated. Nor can it be maintained that the appellant -was guilty of any neglect of duty after the performance of the operation, so far as concerned his ostensible employment. He attended strictly to all the
A competent and experienced surgeon so thoroughly appreciates the responsibility of his position that he would hardly be expected, in a critical case, to neglect affairs of vital importance. Besides, those who practice that profession are not devoid of the kindly sympathy for the unfortunate which is possessed by other people, nor of an unselfish desire to relieve human suffering and distress, as many would seem to suppose. They undoubtedly labor under more mental anxiety by far than any other class, and their ambition to maintain a fair fame and reputation are powerful incentives to fidelity in the discharge of such sacred trusts as are committed to their care. I have not the most remote idea that out of the whole list of names of the prominent physicians called as witnesses upon the trial of this case one would be found whose constancy to professional duties can justly be suspected, or who, under any consideration, would neglect them, where the consequences would be likely to result seriously. This confidence doeC! not arise from faith in the superior integrity of the medical profession; but there is an innate desire in all mankind for success, approbation and fame, and, when encouraged by such a training as is usually given in medical schools, it becomes the predominant sentiment of the mind, and very few are so dull or stupid as not to be actuated by its influence, or to believe that it can be realized in any other way than by the exercise of active vigilance and unremitting attention.
The respondent’s counsel did not claim, however, at the hearing, that the appellant was negligent in the respect above alluded to; but insisted that he was- negligent in failing to discover the existence of the respondent's pregnancy until after the expulsion of the foetus, and that her condition was evident; also that he negligently and unskillfully probed the uterine cavity with a metal instrument, whereby he ruptured the foetal membrane and tore
The appellant was employed to treat the respondent for a malady of the most alarming character. It was apparently local, but most probably the origin of numerous ailments, and was of such a nature that unless arrested her life was but a burden, and its continuance for a brief period could bé no more than a miserable existence. Its prolongation would be attended with excruciating- pain suffering and distress, and necessarily be brought to a speedy close. It was in that condition the appellant found her, and he viewed her case from that standpoint. The question of her pregnancy was only a secondary matter, and his treatment would not have been varied if he had known it, unless he did probe the uterine cavity, as the respondent’s counsel allege, but which he emphatically denied upon his oath, administered to him on the witness stand. In view of the character of the respondent’s sickness when she applied to the appellant for treatment, what earthly reason could he have had, after learning the history of her case, for surmising -that she might be pregnant? The tumor with which she was afflicted had doubt
It must have been some time after the operation before the respondent herself had any idea that she was pregnant. In her testimony as a witness in the case she says, after speaking of the operation: “He did not dress my wound the next day, but the third day he did., assisted by Mrs. Young. And he came on then for some ten or twelve days * * * and then he left and did not come again probably
This was more than a month after the operation was performed according to the respondent’s own data, and she then concluded that it was impossible for her to be with child. But, about the twenty-seventh day of January, 1888, she seems to have become convinced, in her own mind, that such was the case, and that she could not be mistaken. She said in her testimony. “I told Dr. Jones —it was on Friday, and I may be a little mistaken in my date, but I know it was on Frida3r afternoon that I first spoke to him about being pregnant, and my husband also —and he said it was utterly impossible; that it could not be; that it was impossible after the operation he had performed for me to be in that condition; and he laughed at the idea at first, and then seemed a little startled before he left the house, and examined my abdomen externally—I presume some four or five times—and there was a movement; but he kept saying that it was contraction of the muscles, and contraction of the uterus; and every time he would see the movement after that ‘ it was contraction of the uterus and of the muscles;’ and T kept telling him it could not be; that I knew I was pregnant, and told him,
This account of the affair does not differ materially from that given by the appellant. It appears from his testimony that after the removal of the tumor he attended upon the respondent, from time to time, for a little more than a month; that the operation did not restore her to health, but her symptoms were much better and he discontinued his visits; that he did not see her again until about the nineteenth of January, at which time she called at his office; that he considered her very much improved, though she was still troubled with heartburn, dyspepsia, and complained of pain in the lower part of the abdomen. The appellant then renewed his visits, and during this time she mentioned having experienced a movement indicating pregnancy. Her husband, also, was convinced in his mind that she was in that condition, and so informed the appellant. The latter, however, seems to have been very skeptical upon the point. He felt certain that if she had been so the operation would have produced a miscarriage; claimed, from the history of the case given him by the respondent, that it was not possible for her to be pregnant. He, however, concluded, in order to satisfy himself thoroughly, that he would make an examination for indications of pregnancy, and have his brother, William Jones, who was a regular practicing physician, assist him. That about the first of February, 1888, such examination was made; that they found that the abdomen was éxceedingly tender, due, as the appellant claimed, to the disease and to peritonitis, and that she was troubled with tympanitis, which caused excessive bloat, and in consequence of which, and the tenderness of the abdomen, neither of the tests, by percussion or ballottement, as physicians term
The appellant claims that the object of that operation .was to maintain the opening to the uterus, which he established when he removed the tumor, in ordor to admit of the discharge therefrom of any matter necessary to pass off. He states that he found the opening partially closed, and that mucous had collected, which it was necessary to remove. That to enable him to ascertain the depth of the opening, he used a small probe made of pure silver, and flexible, having a smooth point; that by means of which, with a small piece of absorbent cotton, he removed the mucous, but that the probe never entered the uterine cavity; that he called the next day and ascertained that the operation had caused no trouble, but that the respondent still complained of bloating, constipation, inability to retain food, loss of appetite, and that when she did eat anything it distressed her; that appellant continued his visits up to the twenty-fifth of February, administering to her simple medicines to alleviate her suffering; that he did not call again until the twenty-second of March following; that a few days previous to that time the respondent had had a loss of fluid, and her bowels were more distended; that he again made a digital examination and found no change in the neck of the uterus; that he called again on the twenty-fifth of March, and found that the fluid had about ceased its discharge, but that the respondent was suffering much pain, and he prepared a watery extract of opium, to be administered by suppository, one every three hours; that about the twenty-eighth of the same month the respondent was delivered of a dead foetus.
This seems to have been the first incident which had the effect to induce the appellant to believe that the respond
A liability in such a case does not attach as against a doctor any more than it would against a lawyer who commits an error m the practice of his profession. The law exacts the same acquirements and duty from each—that he shall possess a reasonable degree of learning and skill, and exercise it according to his best judgment. It is not a difficult matter to indicate, from a retrospective standpoint, the proper course to have pursued in regard to affairs, however complicated they may have been. That is very safe ground to occupy, and the would-be wise and sagacious usually have sufficient prudence not to venture upon any other. They know thoroughly, and can point out accurately and decidedly, what course should have been pursued—after the occurrence to which it related has transpired. Nor will they hesitate to exact from the one charged with the duty, and who undertook its performance with no light save that derived from study and experience, as perfect and complete a compliance therewith as though it were undertaken in the full light of subsequent events. If the conduct of actors in important transactions were to be judged from such a basis it would never escape criticism and censure, however faithful and efficient it may have been, as there always may be found that some of the minor details of the affair have not been observed .with due nicety, or which could not have been obviated or omitted by the adoption cf
The respondent’s counsel in this case are able to animadvert upon the failure of the appellant to discover the respondent’s condition of pregnancy, and to draw inferences therefrom unfavorable to him. They can speciously and eloquently urge, after the development of the affair, that the evidences indicating the result which followed were so unmistakable that any physician could have easily anticipated it; but they are not able now to point out how the appellant, from a prospective view, could have ascertained the fact with any degree of certainty under the peculiar circumstances attendant upon the respondent’s sickness. It is true that the respondent and her husband, as she testified, became convinced that such was the case, and so informed the appellant; but it clearly appears, from the testimony of both, that it was only a matter of conjecture with them. The appellant would not have been justified in acting upon that kind of information, which, in effect, was not much beyond a suspicion. What excuse could he have made for suspending his treatment, through an apprehension of injury resulting to the foetus, in ease there were one, when the consequences of the suspension would of necessity be serious. It was highly important, as anyone must know, that the opening which the appellant left in the uterus for the discharge of matter necessary to pass off, should be maintained. In order to determine in regard to the existence of the pregnancy, the appellant was compelled to rely upon the history of the case, upon, his own knowledge of the circumstances and surroundings of the affair, and upon those tests established from observation and experience as indications of it.
Time, however, which is the only certain proof of the correctness of any theory, showed that the appellant’s conclusions were wrong in that particular; but that did not prove him guilty of unskillfulness or negligence. He did not undertake, in his treatment of the respondent’s case,
The respondent’s counsel claim that there was sufficient evidence of the appellant’s negligence and unskillfulness in his treatment of the respondent to at least justify the circuit court in submitting the matter to the jury. If that were so, said court had no other alternative The practice, however, of leaving the jury to determine such cases has been permitted often, when the responsibility was-really upon the court. It is wrong and unjust to the medical profession to pursue such a course; it tends to encourage the institution of suits against its members when no grounds exist therefor. A physician, in the treatment of disease, or in the performance of surgical operations, does not always achieve that success he desires. Circumstances often intervene over which he has no control, and render his treatment unsatisfactory. This is more especially so with surgery. It frequently happens, in the reduction of a fracture or dislocation, that from some cause, for which the surgeon was in nowise responsible, tho parts of the broken bone have not properly united, have been found not to be in perfect apposition, or the dislocated joint to be enlarged, or that muscular action of the limb has become suspended, or the limb become crooked; and sometimes, in consequence of important nerves having been severed at the lime of the fracture, a loss of sensation of the parts is occasioned, resulting in a permanent numbness, and amputation becomes necessary. In a majority of such cases the party injured by the casualty will claim damages against the surgeon who attended upon him, and have no difficulty in having an action instituted to enforce it, predicating his cause upon alleged negligence in the reduction of the fracture or dislocation, or of
The average juror knows very little about such matters. If he has sufficient discretion to understand them in the outset, he will lose it by the time he has heard the expert testimony and the summing up of the counsel. A trial court should never allow a case of malpractice to be submitted to a jury unless the plaintiff has fairly shown, by competent proof, that the defendant is guilty of the charge alleged against him. I am satisfied that actions of that kind against physicians, especially surgeons, are liable to incite injustice, and are detrimental to the interests of the community. Persons who devote their lives to the study of physiology and anatomy, with a view to relieve the misfortunes and sufferings of mankind, deserve encouragement. The practice of bringing that character of actions against surgeons of acknowledged skill and ability, and subjecting them to the payment of large sums of money, has had a strong tendency to induce them to hesitate about setting broken bones or performing other ox>erations essential to the alleviation of human misery, and if not checked, is liable to drive them out of the profession and leave the performance of its duties to irresponsible quacks and empirics.
I have examined the evidence in this case carefully, and am of the opinion that, as a whole, it is not sufficient to establish that the appellant wTas unskillful or negligent in respect to the matters alleged in the complaint. The circuit court may properly, perhaps, have refused the
The inquiry to Dr. TV. E. Rinehart, when on the stand as a witness, in regard to what he said to J. V. Bridges, as before mentioned, and the testimony of the said Bridges, purporting to be what the witness did say to him, were clearly incompetent. The witness was called by the respondent, and testified, after refusing to describe the symptoms of pregnancy and declining to give expert testimony, as follows: “I am acquainted with Mr. and Mrs. Langford. I think the first time I saw her was in May, 1888. I was called in consultation with Dr. Frazer, and possibly Dr. Kelley or Glisan, I forget which, and we examined her to ascertain her condition. At that time she was very weak, and suffering, I should judge, from sub-acute peritonitis; and on local examination we discovered that a part of the side of the neck of the womb had been removed, possibly a third of it, on the right side. I don’t know what it might have resulted from; don’t know that I have positively any opinion as to what it resulted from in this case; it might result from blood poisoning in cases, but I don’t know what was the cause of it in this case. Did not at that time discover any appearances indicating
Section 838, Civil Code, permits the party producing a witness to contradict him by other evidence, and to show that he has made at other times statements inconsistent with his present testimony; but that section does not allow the party to inquire about matters regarding which the witness has not given any testimony, or testimony of a weak and unsatisfactory character, and then prove his statements made at another time in reference to such matters. The intent of the provision was to allow a party producing a witness who testifies adversely to him regarding some matter which directly affects the merits of the case, to impeach such testimony in the manner there pointed out. The object of the section was to prevent the party from being prejudiced by the evidence of his own witness. He may, of course, call his attention to any statements he may have made at other times, for the purpose of refreshing his memory, but he has no right to ask him about his having made some statement at another time, favorable to the party’s side of the case, which the witness has given no testimony in regard to; nor, a fortiori, to prove what that statement was. The Code certainly did not intend to permit a party -to get in testimony as a makeweight, in support of his cause of action or defense, by such a course; and that evidently is the character of the said
The appellant’s counsel urge, with much force and reason, that exceptions to certain instructions given by the court to the jury were well taken. Said instructions were as follows: * ‘ Some of the testimony introduced is the op in - ion of experts, physicians, surgeons and nurses. The law allows the opinion of the witness on questions of science and art to be heard in evidence when the witness is skilled in such science or art. Such evidence, however, is to be received with caution. The opinion of an expert on the question of medical or surgical practice should be based on facts. In this case the experts have testified upon hypothetical statements of fact, or upon the assumption that
It is contended by the said counsel, in regard to the former instruction, that the portion thereof which is to the effect, that the opinion of a witness on questions of science and art, where the witness is skilled in such science or art, given as evidence in a case, is to be received with caution, is erroneous. Said counsel maintain that such evidencie is entitled to due weight, and cite Atchison, T. & S. F. R. Co. v. Theel, 4 Pac. R. 352; Getchell v. Hill, 21 Minn: 464; Wood v. Baker, 13 N. W. Rep. 597; Carter v. Baker, 1 Saw. R. 525, and 'several. other cases in support of their position. They also insist that said court, under § 200, Civil Code of Oregon, had no right to comment on the effect of such testimony any more than upon other testimony. It would rather seem, from the reading of the in
The point of the objection of the appellant’s counsel to the latter instruction is that there was no evidence in the case which justified the circuit court in charging the jury that if they found that there was gross misconduct and
The judgment appealed from will be reversed. Ordinarily such a disposition of a case is followed by an order remanding it to the court below for a new trial; but, under the peculiar circumstances existing in this case, such order will not be made. It will be remanded, however, with directions to dismiss the complaint.