Long v. . AustinLong v. . Austin
Plaintiff brought this action to recover damages of the defendant, who is a physician and surgeon, for malpractice in the treatment of an injury to her shoulder joint, which she alleges had become dislocated by a fall. The particular allegation i is that the defendant failed, upon examination, to discover the dislocation and to apply such remedies as were necessary to restore her injured shoulder to its normal condition, which could have been done by the exercise of ordinary care an'd skill. The evidence is somewhat voluminous and it is conflicting upon the main issue as to whether proper care and skill were used under the circumstances. It is not required that we should reproduce it here or even to state the substance of it, as we can deal with the question presented sufficiently without doing so. Issues were submitted to the jury, which, with the answers thereto, are as follows: 1.- "Was the plaintiff, Daisy A. Long, injured by the negligence or want of skill of the defendant, as alleged in the complaint? Yes. 2. "What damage, if any, is the plaintiff entitled to recover? ($1,000.00) One Thousand Dollars.
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The principal errors assigned in this Court relate to the refusal of the trial court to give the following instructions requested by the defendant: “1. Even if the jury should find that the plaintiff’s arm was dislocated before the February visit, still if the defendant by using such tests as an ordinarily skilful a.nd lirudent physician would use, failed to discover such dislocation, they will answer the first issue £No.’ 2. If the jury should find that the defendant used the following tests: laid her right arm across her chest, placing her right hand on her left shoulder and pressing her right elbow against her chest; then placing her right hand on top or back of her head; and measuring both arms from the shoulder to the elbow and comparing the measurements, then the defendant would have used the proper tests, and if these tests failed to disclose the dislocation of the arm, the jury will answer the first issue ‘No.’ 3. If the jury find from the evidence that the defendant made a mistake or error of judgment only in his treatment of the plaintiff, they will answer the first issue ‘No.’ ” The charge of the court was very full and accurate and stated to the jury with perfect fairness to both parties the law applicable to every view of the case. The first instruction requested by the defendant was substantially given by the court, with- such modification as to the degree of care and skill in making the examination by the usual and ordinary tests, as was proper in order to prevent a decision of the case upon fragmentary portions of the evidence and a too narrow view of the law by which the liability of the defendant should be determined. The mere use of approved tests, or those which have been found to be the best for the discovery of a dislocation or fracture or any other abnormal condition of the human body, is not all that is required of a surgeon or physician, in the care and treatment of his patient. He must exercise that reasonable skill, care and proficiency in making the tests and in ascertaining from them the presence of any injury and generally in the treatment of his patient which a member of his profession of ordinary care and prudence should use under the circumstances. He is not bound or confined to any special treatment, but to an ordinarily careful and skilful one. The rule is well stated in
Van Skike v. Potter,
The court properly refused to adopt the language of the second prayer and to give the instruction as requested. The defendant’s application of a test, even the ordinary and usual one, was not, by itself, a full compliance with the duty he owed to his patient. The prayer omits any reference to the care and skill the law requires him as a surgeon to bring to the use of the test and the general treatment of the case. If he made the test and failed in other respects to exercise ordinary care, skill and diligence, he is just as liable for a consequent injury as if
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be bad not applied tbe test at all. Tbe prayer is also deficient in not requiring tbe jury to find wbat was tbe proper test, especially as tbe evidence upon tbis question was not all one way. A bypotbetical question should contain all tbe facts essential to tbe expression of an intelligent opinion by tbe expert and of wbicb there is evidence, and not a partial statement of tbe facts wbicb could not present tbe entire matter to tbe witness so as to enable him to give such an opinion as tbe law permits to be considered by tbe jury. Tbe application of tbe ordinary test would be evidence upon the question as
to
whether tbe defendant bad exercised tbe care and skill required of him, but would not be plenary or conclusive proof or be fully determinative of. tbe fact. He may not have applied tbe test properly or, if be did, be may not have possessed requisite knowledge and skill to understand tbe symptoms wbicb it disclosed, or to apply tbe proper remedy. It was for tbe jury to decide, upon the evidence and under tbe instruction of tbe court, whether tbe defendant possessed tbe requisite knowledge and skill and bad carefully applied tbem in bebalf of bis patient. 22 Am.
&
Eng. Enc. of Law (2 Ed.), p. 802;
Woodward v. Hancock,
Tbe instruction contained in tbe last prayer was substantially given by tbe presiding judge, with proper qualification, for be told tbe jury “tbat tbe defendant owed to tbe plaintiff tbat degree of care and skill wbicb is ordinarily practiced and possessed by tbe average of bis profession, and not tbe bigbest known to bis profession. Where a physician exercises ordinary skill and diligence, be is not liable for a mere mistake of judgment.” Tbe instruction, as requested, is faulty in tbat it leaves out of consideration tbe material question as to tbe care and skill required of a physician when treating bis patient.
West v. Martin,
A careful examination of the case does not disclose any error in the rulings of the judge upon the law at the trial.
No error.