126 Me. 244 | Me. | 1927
Two actions on the case tried together and brought by the plaintiff, Louise M. Mills, and her husband against the defendant as the proprietor of a hospital for damages caused by the alleged negligence of a nurse in giving Mrs. Mills after childbirth a douche; which, either because it contained an excessive amount of bichloride of mercury or because it was too hot, burned her body. Pleas, the general issue. Verdicts for Mrs. Mills $2000 and Mr. Mills $500.
The case comes up to this Court on exceptions to the refusal of the presiding justice to grant the motion of the defendant, made at the close of the evidence, to direct a verdict for the defendant; on exceptions to the refusal of the presiding justice to give instructions as to the kind of evidence necessary to prove the alleged negligence and its causing the results complained of, and to the instructions given concerning such evidence; and on general motion.
Exceptions:
First. Refusal to direct a verdict for defendant.
These cases have been tried once before with verdicts for the plaintiffs, which were set aside upon general motion (125 Me. 12). It
The decision stated (125 Me. 15) that at the previous trial it was burning by an excessive amount of bichloride of mercury, which Mrs. Mills said caused the injuries sustained by her. That cause of burning the presiding justice eliminated by his charge and submitted only the question whether she was burned by a douche administered at too high a temperature. No exception was taken by the plaintiffs to this elimination, which was equivalent to ordering a verdict for the defendant on that alleged cause of injury.
But differing and agreeing in details, as the testimony did, as to how the douche was administered, its temperature, the immediate effects on Mrs. Mills, what was then done, the discharge on the next day of the nurse, a young girl of 18 who had entered training six months before, the admitted expression of regret by the defendant, the subsequent events, there was evidence from which the jury, if they believed it, could conclude that the douche was too hot and Mrs. Mills received thereby some injury. The exception is not sustained.
Second. Refusal to instruct and the instructions given.
The defendant requested the instruction that the plaintiff must prove (1) That the nurse was negligent. (2) That her want of skill and care caused the injury of which the plaintiff complains by expert testimony.
The Court refused and instructed as follows:
“I do not think I can give you that instruction as a general rule, altho in this case the testimony bearing upon the question must come from the experts largely and the nurse, because the results that follow from injuries of that kind perhaps can be shown only by medical testimony, until you hear the testimony of the parties themselves, as to what they experienced and what has been observed. These facts you can take into consideration and the testimony as to the
The facts in any case may be in part or largely of the kind which can be furnished only by witnesses who have had special opportunity for observation or special training or special skill in observing and obtaining them. Such witnesses are experts, “skillful or experienced persons.” Their testimony is and is called “expert evidence”. It is however the same as ordinary testimony as to facts, but on the particular topic under consideration general experience is not sufficient, special experience is needed.
The question next arises, what inférences or conclusions are to be drawn from the facts. When the nature of the question at issue is such that men of ordinary experience and intelligence may be supposed to be incapable of drawing conclusions from the evidence without the assistance of some one, who has special skill or knowledge in the premises, witnesses possessing such skill and knowledge are permitted to give their opinions. Conley vs. Gas Light Company, 99 Me. 60. Such expression of opinion is called “expert evidence” and is the kind of evidence usually meant by the use of that phrase. But such testimony “is only an expression of opinion and is received upon the theory that their special learning and skill may render their opinion of service to the jury.” Johnson vs. Gas Light Company, 125 Me. 89.
The requested instruction would limit the proof of both issues, negligence and its cause of the injuries to “expert testimony”. What kind, expert testimony as to fact or expert opinion as to conclusions to be drawn from facts? We think that both kinds must have been meant, but that proof of either issue could not properly be limited to such evidence.
There were a great many facts requiring proof of expert testimony of the first kind. The douche followed childbirth and was to be applied to the interior of the body. The structure of the interior, its condition after childbirth, before and after the douche, the susceptibility to injury by burning of the interior as compared with exterior parts, the normal conditions following childbirth, other conditions which may follow and how commonly and with what results, all these facts were to be furnished by experts and from them conclusions to be drawn on each issue.
The issue of negligence did not require expert evidence of both kinds exclusively. The treatment to be given Mrs. Mills was not a matter of “a highly specialized art.” It consisted of washing by water, hot but not too hot, containing a proportion of another liquid
On the issue of the cause of the injuries complained of, whether the conditions, from which Mrs. Mills claimed to suffer immediately, and over an extended period of time, were due to the douche or childbirth, expert evidence of both kinds must of necessity have made a large and important part of the proof increasingly so with the passing of time. But it was not exclusive proof for the testimony of Mrs. Mills and her mother was evidence from which the jury could conclude that there was immediately some burning of the exterior and also of the interior and thereby a line of causation set up, the limit of which in the intervening period was one of the issues.
The jury were correctly instructed as to the sources of the proof and the proper amount of weight to be given to it.
Motion.
An exception to the refusal to direct a verdict for the defendant is waived by the prosecution of a motion for a new trial before the presiding justice, as otherwise the defendant would be seeking the same remedy through two tribunals, getting the benefit of the second if he failed in the first. State vs. Simpson, 113 Me. 29. The exception is not waived by the prosecution of the general motion before the Law Court. The exception and motion are not inconsistent. They each raise the same question, whether on the evidence a verdict can be sustained. The general motion* may also, as in this case, raise the further question whether the verdict can be sustained.
The former question has been determined by overruling the exception to the refusal to direct' a verdict.
As to the second question Mrs. Mills claimed that because of the douche she suffered much pain and discomfort, was at first unable to perform her marital duties, suffered inconvenience, nervous in
A careful examination of all the evidence, in the light of the expert-testimony of both kinds of all the physicians, clearly shows that there were conditions of the parts, resulting from the childbirth, which could, as consistently as the douche and, as time went on, with greater consistency have caused the conditions and troubles complained of. Where different inferences are deducible from the same facts and are equally consistent with those facts, it cannot be said that the plaintiff has maintained the proposition on which alone there can be recovery. Mosher vs. Smithfield, 84 Me. 337.
While there was evidence from which the jury could conclude there was some injury from the douche, it seems clear that the effect could not have been long continued, and that the jury obviously having considered that the douche caused practically all of the conditions of which Mrs. Mills complained erred in passing a point beyond which that alleged oause could not by a preponderance of the evidence be sustained. The error may have been due to misunderstanding the duty imposed on the plaintiff or to sympathy which may also have led them to overestimate the damages. We are convinced they are excessive and that Mrs. Mills will be fairly compensated by the sum of five hundred dollars and Mr. Mills by the sum of two hundred dollars.
Motion overruled, if plaintiffs within thirty days from filing of this mandate remit all of the verdicts in excess of $500 and $200 respectively; otherwise motion sustained and new trial granted.