143 Minn. 368 | Minn. | 1919
Plaintiff sues as father of Isabel Nelson, 8 years old, for malpractice. Plaintiff resides at Sherbum. On November 11, 1915, Isabel was suffering from osteomyelitis in the radius, a disease of the marrow of the bone. On the twelfth defendant Farrish, a physician of Sherburn, was called to treat the case and he continued to treat it until December 3. The disease grew worse. On November 18, defendant Portmann, a physician of Jaekson and former family physician, was called. He attended with Dr. Parrish, examined the arm, and gave directions as. to treatment. He did not take full. charge of the. case, was apparently not expected to return unless called, and, when he left, gave directions that if they “needed him any more to call him.” On the twenty-second Dr. Portmann was called again. He came. Dr. Farrish also was present. Dr. Portmann gave some directions as to treatment, but did not come again,
The court instructed the jury that, if the defendants within a reasonable time made a correct diagnosis and clearly advised the parents of the nature of the ailment, and the importance of an immediate surgical operation, and of the result likely to follow a refusal, and that the.parents refused to permit such an operation, their verdict should be for defendants, that if they failed to diagnose and treat the child with reasonable and ordinary skill and such failure resulted in the injury complained of, then defendants were liable for damages. We find no error in this instruction. Getchell v. Hill, 21 Minn. 464.
The court further instructed the jury that “the burden is upon the plaintiff to prove by a fair preponderance of the evidence that, notwithstanding an incorrect diagnosis and failure to advise the proper treatment, a different result would have followed, and there would have been a better recovery, if there had been an operation within a reasonable time.” Plaintiff’s counsel contend that the only defense is that the par
Plaintiff contends that defendant Portmann was employed generally to diagnose, treat and cure, and complains that the court instructed the jury that he was called in consultation with Dr. Farrish. Under the evidence we think the court’s ruling was right. However, as far as concerns his liability for what occurred on the occasion of his visits, it is not very material in which capacity he was called. He was called as a physician and surgeon to diagnose the disease and prescribe or direct treatment for its cure, regardless of what Dr. Farrish had done. While he was there he owed the duty to employ reasonable professional skill. Walker v. Holbrook, 130 Minn. 106, 153 N. W. 305. The court did not rule or instruct otherwise. There is no claim on his behalf that he had not ample opportunity to correctly diagnose the disease. He claims he did do so and advised thé family of his diagnosis. In this connection it is pertinent to observe that there is no question but that Dr. Farrish’s employment was general. Since the jury found in his favor, it is difficult to see how they could have found otherwise as to Dr. Portmann, whether his employment was general or as a consultant. In no possible view of the case could it be said that the obligation or liability of Dr. Portmann was greater than that of Dr. Farrish.
The difference between general and special employment relates mainly to the obligation of the physician to continue his attention. If called generally he must give such continued attention and attendance as the
Dr. Portmann was asked on cross-examination whether he ever made any claim that either he or Dr. Parrish had advised an operation, which was refused and why he did not make such a claim on an occasion when plaintiff and his attorney called on him. This might properly have been' admitted as impeachment of his testimony that he had given such advice, but it does not seem to us of such importance that its rejection should warrant a reversal. The rejection of evidence will not warrant a reversal, unless its admission might reasonably have resiilted in a different verdict. Barnes v. Spencer, 113 Minn. 101, 129 N. W. 140; Svensson v. Lindgren, 124 Minn. 386, 389, 145 N. W. 116, Ann. Cas. 1915B, 734. See G. S. 1913, § 7789.
Order affirmed.