Mann v. Grim-Smith Hospital & ClinicMann v. Grim-Smith Hospital & Clinic
The facts hereinafter set out were shown by plaintiff’s evidence. Plaintiff, 75 years old on November 13, 1937, fell and broke her left leg below the knee. A doctor from LaBelle placed the leg in a splint and took her to the defendant hospital, arriving about 9:30 p. m. She was first taken to the X-ray room where an X-ray of the leg was taken by Dr. Cramb, a member of defendant’s staff. The evidence showed that the limb was too swollen to set until Monday. Dr. Cramb was assisted by Dr. George Grim, who pulled the leg while Dr. Cramb attempted to put it in place. No anesthetic was used and a cast was placed on the leg at the time. No further X-ray was taken at the time the leg was set. On December 11, X-rays were again taken and a new cast was put on in January. The second cast was taken off and plaintiff was discharged from the hospital January 29, 1938. Dr. Cramb gave no instructions as to the care of the leg at the time she was discharged from the hospital, merely saying, “A pretty good leg.” After her discharge she sent for Dr. Cramb because she was suffering so badly with the leg. He called four different times to see plaintiff but did nothing except pull her leg. Plaintiff continued to suffer with her leg and it was still swollen at the time of trial. She could get around using a cane in her right hand and holding on to things with the left hand. Before her accident she was very active. Her leg is not straight now. Dr. E. E. Walcher took an X-ray of the leg on July 1, 1939. Plaintiff claims that these facts, together with the testimony of Dr. Becker, an osteopath, and the offers of proof made concerning his testimony were sufficient to make a jury case; and that the court erred in excluding these portions of his testimony.
The following questions, objections, offers and rulings were thereafter made:
“Q. Now, Doctor, viewing those two pictures, would you say that plaintiff’s Exhibits 8-a and 9-a (X-rays taken in the hospital while plaintiff’s leg was in a cast) show a proper setting of that leg? Mr. Clark: Now wait a minute, if the court please. I object to that. It is calling for an opinion and invading the province of the jury and it is not the proper way to prove it. There is no hypothesis as to the condition of the patient or anything upon which even a medical expert could base an opinion. Mr. Atherton: He is testifying, Your Honor, as an expert. Mr. Clark: He hasn’t qualified as an expert here. The Court: The court is not clear on this particular thing, but it seems to me he can’t be an expert in this case. How could he? . . . Mr. Atherton: We offer to prove that the method of reduction of fractures by an osteopathic physician and surgeon and by a medical physician and surgeon are the same; that they use the same textbooks and the methods of reduction as taught in the two schools are the same. We offer to prove all this by this witness. . . . The Court: If this witness knows that, I will let him testify to it. . . . Mr. Clark: May I ask a preliminary question? The Court: Certainly. Mr. Clark: Q. Are you a graduate of any medical school? A. No, sir. The Court: Objection sustained. (Exception) . . . Mr. Atherton: Q. What is the proper method of reduction of fractures, Doctor, such as you have observed here? . . . Mr. Clark: If the court please, I object to that for the reasons I have stated, the proper practice can only be determined by those learned in the medical profession and not by one who has been trained in some other
Of course, as contended by defendant, “in an action for malpractice a physician or surgeon is entitled to have his treatment of his patient tested by the rules and principles of the school of medicine to which he belongs, . . . and if he performs the treatment with ordinary skill and care in accordance with his system, he is not answerable for bad results.” [21 R. C. L. 383, sec. 28; see also 48 C. J. 1118, sec. 104; Note 78 A. L. R. 697; Cazzell v. Schofield, 319 Mo. 1169, 88 S. W. (2d) 580; Grainger v. Still, 187 Mo. 197, 85 S. W. 1114.] However, these authorities show this does not mean that no testimony of a practitioner of one school is competent in a malpractice case against a practitioner of another school. In the Cazzell case (where an osteopath testified in a case against an M.D.), we reaffirmed the ruling of the Still case (where M.D.s were allowed to testify against an osteopath) that such a witness “was competent to express his opinion as to matters of diagnosis and to testify to any scientific fact that ought to be known to every physician and surgeon of every school or system.” [See Cook v. Moats (Neb.), 238 N. W. 529, 78 A. L. R. 694, citing and following the Still case; see also Longan v. Weltmer, 180 Mo. 322, 79 S. W. 655, where an M. D. was held competent to testify in a case against magnetic healers.]
A well reasoned statement of this qualification of the general rule is made in Swanson v. Hood (Wash.), 170 Pac. 135 (also a bone fracture case), as follows:
“The rule is not that a physician of another school is not competent to testify, but that a defendant’s treatment is to be tested by the general doctrine of his own school, which is a very different thing; in other words, the standard of exclusion of evidence is not the school of the witness, but the premises of his testimony. If the premises from which he testified, that is to say, the criterions by which he measures defendant’s treatment, are those of defendant’s own school, the witness is not disqualified merely because he himself belongs to another school. . . . When it once appeared that the osteopathic physician was basing his testimony on the tests of appellant’s own school, his testimony was admissible; its weight was for the jury.”
It is apparent in this case that the trial judge took the position that Dr. Becker could not qualify as an expert in this case solely because he was not a graduate of any medical school. In so ruling, the court disregarded the ruling in the Still case that if “it should appear that both the schools to which the witness and the defendant belonged employed the same treatment,” to the condition under consideration, testimony as to propriety of treatment would be competent. It is, of course, no ground for exclusion of the testimony of an expert witness to say that a question calls for an opinion or conclusion or invades the province of the jury, so long as the question does not call for a conclusion of law. [Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S. W. (2d) 311, l. c. 322, and cases cited.] As to how similarity of methods might be shown, the Washington case, Swanson v. Hood, said such testimony “is admissible, though it be based on the study of books rather than on his own experience.” Here the plaintiff sought to show “that the methods of reduction (of fractures) as taught in the two schools are the same, “not only from Dr. Becker’s study of books, but also from experience gained over a long period of time he had practiced with M. D.’s in this and similar fractures;” and furthermore, “that the same textbooks and authorities are used by the followers of both schools” as to treatment of fractures. Whether or not the witness did know what he purported to know was of course another matter, which could only go to its weight if he made a prima facie showing of qualifications. He was not even allowed to show what his qualifications were by stating what his experience and study had been. Neither was he permitted to testify as to what was shown by the X-rays taken by defendant when plaintiff was in the hospital with her leg in a cast; and the basis of objections and rulings did not go to his qualifications to understand and interpret X-rays. Plaintiff points out that our statutes require an M. D. to study and pass examinations on anatomy, physiology and surgery (
The judgment is reversed and the cause remanded. Bradley and Dalton, CC., concur.
Per Curiam:—The foregoing opinion by Hyde, C., is adopted as the opinion of the court. All the judges concur.