130 Minn. 434 | Minn. | 1915
Defendants appeal from an order denying their motion in the alternative for judgment or a new trial in this action wherein a verdict was rendered against them for malpractice.
The main contention of appellants is that the evidence does not support a recovery. But if not sustained in that, they urge as grounds for a new trial error in two rulings relating to the admission of evidence and in certain portions of the charge.
On January 15, 1913, plaintiff, who for a day or two had suffered severe pain in his left ear, called the defendant Dr. Reals to treat him. Dr. Beals, a duly licensed homeopathic physician and surgeon, came and prescribed for plaintiff.- The next day the doctor made a closer examination and undoubtedly located the difficulty as an inflammation of the middle ear. He however claims there was then no evidence of such pus formation that good practice would require a puncture of the ear drum to drain the infection. The next morning the pressure of the pus ruptured the drum. The drainage thus opened greatly relieved the pain and reduced the fever. But after three or four days, as the discharge from the ear decreased, the pain and
The negligence charged against the physician is improper diagnosis and treatment, especially in failing to provide an adequate escape for the pus found in the middle ear by opening and keeping open a sufficient drainage aperture in the ear drum when he first was called, and in failing to operate on the mastoid process when it became evident that therein existed a serious infection which did not drain through the ruptured ear drum. An examination of the record leads to the conviction that there is evidence tending to establish that Dr. Beals, in the treatment of plaintiff, did not use the care and skill which would be used by the ordinary homeopathic practitioner. And while this evidence is not very specific or positive as to the exact time when a different treatment than the one given should have been had, yet we deem it of sufficient strength and certainty to entitle a jury to pass on the issues made by the pleadings. It would serve no useful purpose to set out or discuss the testimony given. Adroit cross-examination served to draw from plaintiff’s medical expert certain answers which taken by themselves might seem conclusive in favor of defendants. But the jury had a right to consider the setting in which the opinions were expressed, and upon all the evidence give a final estimate of the opin
We think there was also sufficient evidence to justify the submission to the jury of the claim that the loss of hearing in the affected ear resulted from the negligent treatment of Dr. Beals.
Plaintiff was asked to describe the feeling of pain or tenderness experienced in the mastoid bone during his illness. Defendants objected that plaintiff could state only what he told his attending physician concerning the matter. The objection was overruled. The ruling is assigned as error. The witness had already stated that he told the doctor as nearly as he could about the pain and its location, and it also appears from plaintiff’s subsequent testimony that
Many exceptions are taken to the charge. In the main these relate to verbal inaccuracies which, undoubtedly, would have been cheerfully corrected if the attention of the court had been called thereto before the jury retired. The controlling legal principles were correctly stated to the jury, and a faulty recollection of some detail- of testimony, perhaps unnecessarily recounted to the jury, should not require a new trial in view of the fact that defendants’ counsel deemed it of no sufficient importance to attempt to set matters right at the time. The contention that this portion of the charge throws the burden of proof upon the physician to show freedom from negligence is not tenable:
“The second question is, was Dr. Beals justified in the exercise of the skill, learning and diligence usual among members of his profession in good standing under the .circumstances in deferring the operation referred to as the operation for mastoiditis.”
The operation, when made, unquestionably disclosed a situation showing it- to have been imperative, and the question for the jury’s determination was correctly stated in the part quoted. The instruction does not suggest that the burden of proof was upon the physician to justify his acts .or omissions, and several times the jury were told that the burden of proof was upon the plaintiff to show the-negligence alleged. The court ended up with this statement:
“If you should believe from the evidence that Dr. Beals applied his skill and'judgment with the care usual among physicians in good standing .in his prqfessipn, then he would not be liable for an honest mistake of judgment in determining the necessity or lack of neces*439 sity for an operation; * * * if you should believe from the evidence that Dr. Beals exercised the skill and judgment usual among physicians in good standing in his profession and school in an effort to determine the necessity for an operation, and if you believe there was a reasonable doubt at that time as to the necessity for an operation, or as to the conditions in the ear existing at the time of tho operation, or as’ to what should have been done under the circumstances, then you could not find the defendant negligent and your verdict would be for the defendant.”
Complaint is also made because the court, when plaintiff rested, refused to dismiss for failure to .show the partnership of defendants, but, on the contrary, submitted the question to the jury. The defendant Cobb testified that the other defendants were in his employ. Of course, if Dr. Beals was guilty of malpractice, his employer would be responsible. So that the one who could really complain if there was no partnership, or a holding out as partners, would be defendant Brunjes. But we think the testimony in respect to office arrangements and bills rendered for professional services indicated a joint enterprise or partnership between all of defendants, hence the court was not wrong in submitting the question. The defendant Brunjes did not testify and offered no explanation why, when professional service was rendered by one of the defendants, the patient would be presented with a bill showing all the defendants entitled to receive the fee charged therefor. We discover no error justifying a new trial.
The order is affirmed.
On July 23, 1915, the following opinion was filed:
Per Curiam.
Upon the re-hearing granted in this case the majority of the members of the court have reached the conclusion that a new trial should be had, because the evidence was insufficient to warrant the submission of this claim of improper or negligent treatment to the jury: “Was Dr. Beals justified in the exercise of the skill, learning and diligence usual among physicians in good standing in- his
In other respects the original opinion is deemed correct. The result is that insofar as the order appealed from denied judgment notwithstanding the verdict it stands affirmed, but it is reversed wherein a new trial is denied, and a new trial is hereby awarded.