286 Mass. 429 | Mass. | 1934
These are two actions of tort against the same defendant, a physician, to recover direct and consequential damages for the same alleged malpractice.
The declaration in the case of the infant plaintiff, Azad, alleged, in substance, that for the period of about eight weeks beginning on or about January 15, 1928, the defendant, a physician hired and employed to treat the plaintiff, carelessly, negligently and unskilfully treated, handled and attended the plaintiff whereby the plaintiff was injured. The answer was a general denial. On motion of the defendant that the plaintiff be required to specify wherein the defendant carelessly, negligently and unskilfully treated, handled and attended him, the plaintiff filed the following specifications: “The defendant carelessly, negligently and unskilfully treated, handled and attended the plaintiff in the following particulars, to wit, that the defendant failed to exercise the usual and ordinary care and skill in diagnosing the plaintiff’s ailment, and failed to exercise the usual and ordinary care and skill in performing a surgical operation upon the plaintiff, and failed to exercise the usual and ordinary skill in prescribing for and treating and handling the plaintiff.” It is agreed by the parties that the disposition of the Hagop action shall be governed by the disposition of the Azad case, so that only questions of law presented by the Azad case are to be considered. At the close of the testimony the defendant
The cases are before this court by the report of the trial judge, at the request of the parties, on the following stipulations: “If the Supreme Judicial Court shall decide that the motion for a directed verdict in the case of Azad Marangian should have been allowed, verdicts are to be entered for the defendant in both cases. If the Supreme Judicial Court shall decide that there was an error prejudicially affecting the rights of the defendant in my refusal to grant any of the requests of the defendant for rulings and instructions in the case of Azad Marangian, new trials, shall be granted in both cases. If the Supreme Judicial Court shall decide in the case of Azad Marangian that the denial of the defendant’s motion for a directed verdict was correct and that there was no prejudicial error in the refusal to grant any of the defendant’s requests for rulings and instructions, the verdicts returned by the jury for each plaintiff are to stand, subject to final action by the trial judge on the defendant’s motion for new trial on the ground of excessive damages, now pending in each case.”
The testimony in its aspect most favorable to the plaintiff’s case warranted the jury in finding the following facts: The defendant resided in Belmont with offices in Boston, and as a general practitioner was engaged in both places in the practice of medicine and surgery. In response to a call on January 16, 1928, at about noon, he went to the home of the plaintiff, Azad Marangian, on Sharon Street, Boston,
The requests for instructions numbered 2 and 3 for the purpose of the requests concede, as we understand them, that the testimony warranted the jury in finding negligent administration of the antitoxin, but contend that there was no causal' relation proved between the admitted bad practice, if found by the jury, and the septic arthritis from which the plaintiff admittedly later suffered. The defendant testified that a failure to instruct the mother, or other attendant of the child, to keep him on a milk diet and to give him plenty of water would be bad practice and would probably be “followed by grave consequences to the patient.” The jury would have been warranted in finding, on the testimony of the mother, that at no time while the boy was ill did the defendant tell her what to give him to eat or to drink. The requests for instructions numbered 4 and 5 necessarily admit there was testimony to warrant the jury in finding that there was a failure by the defendant to give instructions in regard to diet, but contend, if they should so find, that there was no causal connection proved between such bad practice and the septic arthritis from which the plaintiff later suffered.
The testimony warranted the jury in finding that the defendant took the temperature of the child only on two or three occasions toward the last of Azad’s illness. If the jury should so find, the defendant contends under request numbered 6 that there is no evidence that the failure to take his temperature oftener caused proximately any damage to the plaintiff.
There was testimony to warrant the jury in finding that the defendant discouraged the removal of the child to the City Hospital, and that good practice would have directed that the boy be sent to a hospital as a place more likely to protect and safeguard him than facilities available and the care possible by an inexperienced mother in a three-room
The testimony warranted the jury in finding that good practice required that the defendant should have made calls on the plaintiff between January 20 and January 26, 1928, to observe the reactions which followed the injections and thereby guard against possible complications; and that the defendant failed to follow such practice; that the defendant had neglected to make the examination which good practice required should be made of the nose, throat and kidneys; and that the defendant opened without proper aseptic precautions certain abscesses which appeared on the plaintiff. These instances of alleged malpractice are covered by the defendant’s requests for rulings numbered 8, 9 and 10 to the effect that no harm from such failure resulted proximately in any damage to the plaintiff. There was ample testimony to support a jury finding that the aseptic measure was not made use of by the defendant and for a finding that failure to use aseptic precautions increases the probability of infection.
It is the plaintiff’s contention and is supported by testimony, that the defendant should not have opened the abscess in the region of the hip, in the surroundings at the time he did, without the assistance of another doctor or a nurse, or without administering an anaesthetic, or without adequate facilities, or an X-ray, and that the defendant should not have undertaken to open the abscess in the region of the hip before making some examination to determine whether the hip joint was involved in the general infection. In view of these contentions the defendant presented for instruction requests numbered 11, 14, 18, 19,
The defendant assumed that the plaintiff contended that the testimony warranted a finding that some act or failure to act on the part of the defendant was responsible for the septic arthritis from which the plaintiff suffered, and requested an instruction, numbered 17, in substance, that the defendant was in no way responsible for any sufferings, injury or damage which the plaintiff may have suffered as the result of septic arthritis. The plaintiff does not agree that the words “septic arthritis” correctly diagnose the plaintiff’s condition, and contends that the request would have compelled the judge to assume for the purpose of the instruction that the plaintiff had septic arthritis and thus lead the jury into believing that if the plaintiff had septic arthritis the plaintiff could not recover for other acts and defaults causing suffering and harm to him. The testimony supports the plaintiff’s contention that the defendant was negligent in failing to call a specialist or consultant, and that his failure to apply extension and immobilization to the plaintiff’s hip joint was bad practice and would increase the destruction of the bone.
The defendant also presented requests numbered 22, 23, 24, 25 and 27, which were intended to cover the alleged improper use of vaccine, and every other act of the defendant, either of commission or of omission, and sought a ruling that the acts or omissions of the defendant were not negligent acts or omissions which proximately caused damage to the plaintiff. All these requests rest upon two postulates — one contained in request numbered 20, that “There is no medical evidence from which a jury may find that any negligent act on the part of the defendant caused proximately any damage to the plaintiff”; the other contained in request numbered 21, that “Without medical opinion and evidence that a negligent" act on the part of the defendant caused proximately damage to the plaintiff, the jury may not draw a conclusion that damage resulted from the alleged negligent act or acts.”
The causal connection between the defendant’s negligent acts and the plaintiff’s injuries should be shown by proof and not rest upon conjectural or speculative inferences. It is the contention of the defendant that the doctrine of res ipsa loquitur is not applicable to establish causal connection between the alleged negligence and the alleged injury. Semerjian v. Stetson, 284 Mass. 510, 514-515. He further contends that it is only in exceptional instances, this case not being one of them, where a jury, instructed by common knowledge and experience, may without aid of expert medical opinion determine whether the conduct of a physician toward a patient is violative of that special duty which the law imposes as a consequence of the particular relationship. The contention is warranted by the decision in Toy v. Mackintosh, 222 Mass. 430, 432, and in Chesley v. Durant, 243 Mass. 180, 182. Compare Traverse v. Wing, 256 Mass. 320, 322, 323.
The plaintiff does not deny that this principle is applicable, but contends that actual facts of physical conduct, testified to by the defendant himself, amply warranted the submission of the case to the jury, and warranted the finding that various acts of negligence were bad medical practice, and that acts of the defendant, shown by the testimony, if believed, would probably cause' the infection, increase the severity of the infection, reduce the plaintiff’s chances of
Although the jury might have found that no single act of the defendant, set out in his requests for rulings, was negligence which proximately caused damage to the plaintiff, they well could have found on the expert evidence that a number of the said alleged negligent acts, if proved, in combination were sufficient to cause the damage admittedly sustained by the plaintiff. A request to charge which selects certain circumstances that in themselves are not decisive of the case but may be considered in connection with the other facts in evidence may be denied properly. Green v. Boston & Lowell Railroad, 128 Mass. 221. Boston v. Fountain, 267 Mass. 196. The testimony introduced by the plaintiff under the specifications, if believed, warranted the finding that omissions of the defendant were improper practice from a medical standpoint and that they, in combination, caused to some degree damage to the plaintiff that was not the natural - result of his illness.
The denial of the defendant’s motion for a directed verdict was correct. There was no prejudicial error in the refusal to grant any of the defendant’s requests for rulings and instructions. It follows, in accordance with the stipulation of the parties, that the verdict for each plaintiff is to stand subject to final action by the trial judge on the defendant’s motion for a new trial on the ground of excessive damages now pending in each case.
So ordered.