194 N.W. 917 | N.D. | 1923
Lead Opinion
This is a malpractice action. The case was tried to a jury and resulted in a verdict of $10,333 in favor of the plaintiff. After both sides rested, the defendant moved that the action be dismissed and also for a directed verdict for nominal damages of $1. Both motions were denied. Judgment was entered on the verdict and appeal therefrom was perfected to this court. A motion for a new trial was not made.
Appellant ■ specifies sixty-three errors. These are grouped in the brief of appellant’s counsel under eight general assignments. They relate, in general, to the reception of nonexpert testimony upon technical questions of medical practice and diagnosis; collateral impeachment, erroneous instructions, testimony as to the other cases of malpractice, abuse of cross-examination under the statute, misconduct of counsel and excessiveness of verdict. It is also, of course, asserted that the court erred in denying motion for dismissal and refusing to grant the motion for the direction of a nominal verdict.
The facts, as testified to by plaintiff’s witnesses are as follows: The plaintiff, Louise Schmidt, was fifteen years old at the time of the trial, in January, 1922. Sometime during the summer of 1915, her mother says she took plaintiff, then a girl of eight years, to the office of the defendant at Balfour to have her adenoids removed. The girl herself says she went there to have her tonsils removed. The mother does not testify to any conversation with defendant prior to or at the time of the operation with reference to the removal of the tonsils or the uvula. The operation was performed, her throat was sore for sometime afterwards and her mother discovered, a few days after the operation, that her uvula was gone, although she says she saw it in her mouth just prior to the trip to Balfour. The mother and the plaintiff testified that, following the operation, plaintiff choked when she tried to swal
The mother of plaintiff testified that during the operation in defendant’s office the girl apparently was not under complete anaesthesia and that she was striking with her hands and trying to struggle against the operation. The unmistakable inference from her testimony and to some extent of that of the daughter herself is that the surgeon who operated negligently failed to completely anaesthetize and for that reason the girl, partly conscious during the operation, struggled and had to be held. Inasmuch as the charge of negligence is not based upon lack of skill in the actual removal of the tonsils or the adenoids, the purpose of this testimony undoubtedly was to show the probability of accidental removal of the uvula at the time the tonsils were removed, because the patient was partly conscious and not wholly quiet. The most that can be said with reference to this testimony is that it-constitutes a -circumstance which, with other facts, might tend to show that the uvula was accidentally removed because the surgeon negligently failed to completely anaesthetize the patient.
Dr. -Johns further testified that he could not say, -either fro-m his experience or from the textbooks, to what extent the uvula was a necessary organ. Tie said he assumed it had some function because othe.rwise it would not be a part of the human anatomy, but what its function is he did not undertake to- say specifically, except as indicated heretofore.
The defendant denied he ever performed any ojDeration whatever on plaintiff, or even ever saw her before. There is substantial evidence from which the jury could find against him on this point and we shall not take time to dismiss this further. lie called two experts who testified in his behalf. One of them, Dr. McCannell, is a specialist in eye, ear, nose and throat diseases, who has been practising in Minot since 1907 and who has performed on the average five hundred adenoids operations per year since. He testified that he examined the
Another expert witness who testified for the defendant was Dr. Erenfeld, a physician and surgeon of Minot, engaged in general practice. He states that there is much difference of opinion as to the function of the uvula and that he personally did not know that it had any function; that he had seen patients frequently with the uvula removed, but never one in any way impaired; that there was no condition in the mouth of the plaintiff that would interfere with her swallowing, nor would the removal of the uvula have anything to do with swallowing,
Such is the substance of the expert testimony in the case. The exports testifying for the defendant explicitly and specifically state that the removal of the uvula would not cause the condition described by the plaintiff and her mother and that the removal of the uvula would not be attended by any injurious consequences; all the experts say that it is proper to remove a diseased uvula and the record shows that a diseased uvula is sometimes found with diseased tonsils.
In the absence of evidence to the contrary, the law presumes the. exercise of a reasonable degree of care and skill by a physician and surgeon; 21 R. C. L. 406; Houghton v. Dickson, 29 Cal. App. 321, 155 Pac. 128, citing, State use of Janney v. Housekeeper, 70 Md. 162, 2 L.R.A. 587, 14 Am. St. Rep. 340, 16 Atl. 382; Staloch v. Holm, 100 Minn. 276, 9 L.R.A.(N.S.) 712, 111 N. W. 264; Haire v. Reese, 7 Phila. 138; Spain v. Burch, 169 Mo. App. 94, 154 S. W. 172; and that the defendant was innocent of wrong. Comp. Laws, 1913, Subd. 1, § 7936. Nor would the fact that defects appeared after the operation or treatment, unless of such a character that negligence must be assumed from their unexplained presence, which is not the case here, constitute evidence of negligence. 30 Cye. 1584, 1587; Stoskoff v. Wicklund, 49 N. D. 708, 193 N. W. 312; Inglis v. Morton, 99 Wash. 570, 169 Pac. 962; Sawyer v. Berthold, 116 Minn. 441, 134 N. W. 120; Zoterell v. Repp, 187 Mich. 319, 153 N. W. 696. The maxim res ipsa loquitur has no application. 21 R. C. L. 406; McGraw v. Kerr, 23 Colo. App. 163, 128 Pac. 870; Miller v. Blackburn, 170
It is undoubtedly the duty of the plaintiff to establish by a preponderance of the evidence that the condition complained of by her was caused by negligence of the defendant and, therefore, it became incumbent upon her to trace a causal connection between the ailments detailed and the loss of the uvula. The evidence upon this point has been set forth and is not of the most convincing or satisfactory character from the standpoint of the plaintiff. We are not prepared to say, however, that the testimony of the expert witness for the plaintiff -was not sufficient to create a conflict and, inasmuch as the jury has found upon that testimony in favor of the plaintiff, as far as the resulting injuries and the damages are concerned, we are not prepared to say that there is no substantial evidence in the record to support the finding of the jury in this regard.
Complaint is made o-f the instructions of the trial court, with reference to the -weight of expert testimony. The court said, in substance, that expert testimony was not binding upon the jury but that the jury were at liberty to give it such weight as they deemed it fairly entitled to. There was conflict in the expert testimony upon matters beyond the province of lay witnesses to explain or understand. It may be that the instruction is open to criticism but, on the whole, we think it fairly submitted to the jury the proposition that the weight of the evidence was for them and that as between conflicting evidence, expert as well as otherwise, the jury must decide.
This is not a case wdiere all the expert evidence is one way upon technical matters wholly beyond the knowledge or experience of ordinary witnesses. A case may be conceived where it would be improper for the jury to disregard expert testimony. In the case of Relater v. Strain, 39 Okla. 572, 50 L.R.A.(N.S.) 880, 137 Pac. 96, however, experts testified unanimously that the removal of the sesamoid bone from the foot could not cause injury because the bone served no useful purpose. The fact was, however, that, the experts had not in their experience seen this bone in the position it was found, that the foot was
It is true that authorities may be found holding that the jury may not, in certain cases, disregard uncontradicted expert testimony, Bennen v. Parsonnet, 83 N. J. L. 20, 83 Atl. 918; and that upon certain questions expert testimony is necessary to support the verdict; Hunter v. Burroughs, 123 Va. 113, 96 S. E. 360; Ewing v. Goode (C. C.) 78 Fed. 442; Berkholz v. Benepe, 153 Minn. 335, 190 N. W. 800; Holsapple v. Scofield, 176 Wis. 649, 187 N. W. 682. We do not decide in this case that there may not be instances where a jury would not be justified in disregarding uncontradicted expert testimony. All we decide is that the case at bar does not call for the application of that doctrine, nor for a discussion of that question.
Error is predicated upon the attempted impeachment of Dr. 11c-Cannell, one of the witnesses for the defendant. On September 19, 1919, this witness had examined the plaintiff and at the time made a record of the history of the case as given by the father of the plaintiff in his office. This was done according to his custom in all cases. lie saw a prior operation had been performed and obtained from the patient and her guardian information as to when and by whom it had been performed. These facts he put on a card in the usual way. The examination in chief was on this point confined to these matters as a foundation for introducing the card record in evidence. The evident purpose of this examination was to show that plaintiff at that time .asserted that a physician, other than the defendant, had removed the tonsils, which statement appeared on this card record. He was, on cross-examination, asked by counsel for the plaintiff if he had not on that occasion looked into the girl’s throat and said, in substance, that it was an “awful job” and that it was “a wonder she could swallow at
The court further committed error, in connection with this testimony, in submitting to the jury the preliminary question of whether
Dr. McOannell was a very important witness; he is a specialist in oye, ear, nose and throat diseases and his testimony upon technical questions of medical practice in his specialty would, by reason of bis experience, ordinarily be entitled to careful consideration by the jury. There is no doubt that this impeachment of his testimony upon a collateral matter, by showing a contradictory statement to have been made by him, tended to create the impression in the minds of the jurors that he, was biased, probably untruthful and, therefore, an unreliable witness.
Error is also predicated upon the admission in evidence of claims against McHenry county, presented by the defendant for services rendered charity patients during the period from January 1 up to September or October, 1915, upon the ground that this evidence was admitted for the purpose of impeaching the defendant on collateral matters. We think that this evidence, with proper foundation, would he admissible for the purpose of rebutting the claim of the .defendant that, during
Counsel for the appellant claims that the verdict is grossly excessive. It is true that the evidence of injury is not very satisfactory, but this question is not before us. A motion for a new trial upon the ground that the verdict was excessive was not made. Oomp. Laws 1913, § 7660. The verdict was not in any manner challenged in the court below and the finding of the jury as to the amount of the damages is binding in this court. Swallow v. First State Bank, 35 N. D. 608, 161 N. W. 207.
Numerous other errors are assigned, but we do not deem it necessary to notice them further.
The judgment is reversed and new trial ordered.
Dissenting Opinion
(dissenting). The record in this case is voluminous. A week was consumed in the trial. The transcript of the proceedings covers over 500 pages. The majority opinion reverses the judgment and orders a new trial upon two grounds. First, that primarily error occurred in permitting the introduction of a contradictory statement for purposes of impeachment. Second, that secondarily error occurred in submitting to the jury the preliminary question concerning the application of such contradictory statement. Otherwise, the majority opinion upholds the validity of the proceedings had and the sufficiency of the evidence to warrant'recovery. The objectionable testimony for which reversal is had, through the majority opinion, occupies a few lines in the long transcript of proceedings. Robert Schmidt, the father of the girl for whom damages are claimed, was called in rebuttal, lie testified that he had a conversation with Dr. McOannell in the presence of his wife and daughter at the office of the doctor some three years previous. Dr. McOannell asked him “Who did this?” (Referring to a previous operation.) He replied, “Dr. Stone.” Then follows the objectionable testimony.
“Q. What did Dr. McOannell say ?”
“A. It is a rotten job.”
“A. Yes, sir.”
“Q. Now did Dr. McOannell look into the throat of your daughter at that time and call in the nurses into his office and show them the throat at that time ?”
“A. Yes, sir.”
“Q. Did he, in substance, after he had called the nurses in say, ‘Aint it awful V ”
“A. Yes, sir.” (pages 453 to 456.)
Louise Schmidt, the daughter for whom damages are claimed, in rebuttal testified that she heard her father tell Dr. McOannell that Dr. Stone had performed the operation. She did not testify in rebuttal that Dr. McOannell said it was a rotten job or that it was a wonder that she could swallow at all. This testimony, together with the testimony adduced upon cross-examination from Dr. McOannell, is made the basis for a reversal upon the ground that it was an attempt to impeach the doctor, who was an expert witness for the defense upon a.collateral matter. Of course, if this rebuttal testimony did not concern a collateral matter and was properly admissible, then the submission of the preliminary question to the jury concerning the same was within the discretion of the trial court and was not error. King v. Hanson, 13 N. D. 85, 103, 99 N. W. 1085. A brief review of the record proceedings must be made in order to comprehend the application of the impeachment questions to the issues and evidence involved.
The complaint alleges, among, other things, that the defendant doctor, in June or July, 1915, was employed as a physician and surgeon for the purpose of performing an operation for the removal of tonsils and adenoids; that, in the performance of the operation upon the throat of the girl, then aged eight years, the doctor negligently and carelessly removed the uvula from the throat and mouth of the girl and negligently and carelessly maimed, disfigured and injured her; that he negligently and carelessly removed such uvula without the consent and authority of the plaintiff or any person in her behalf; that he entered upon the employment, to perform the operation for the removal of adenoids and tonsils from her throat hut that he performed such operation in such an unskillful, careless, and negligent manner that he removed the uvula from
Dr. Stone, when called for cross-examination under the statute, testified that the adenoids are between the nose and the mouth and the back part of the throat. He does not know how for the distance between the uvula and the tonsils but it is not an inch. It depends on how long the uvula is. Adenoids accumulate above and back of the uvula. The uvula is a part of the sofe palate. He does not know what the function of the uvula is. When you remove tonsils, you remove tonsils and not the uvula. When you remove adenoids, you remore adenoids. It would be improper to remove the uvula in an operation for adenoids and tonsils. He knows he would not do it.
Dr. McCannell was an expert witness for the defense. His testimony occupies some 88 pages of the transcript of the evidence. He is an eye, ear, nose, and throat specialist with a wide and extensive practice at Minot since 1906. At the trial he examined the girl to see the condition of her tonsil area and her upper pharynx. He made such an examination that he knew the condition of that area and also of her throat. He knew the girl. She was in his office in September, 1919. The trial was had commencing January 31st, 1922. At that time, in September, 1919, he made an examination of this girl’s throat and mouth. He found that the lower poles of both tonsils, that is, the part of the tonsils down near the tongue or at the base, were in a diseased condition and he remedied that condition by removal. The upper portion of the tonsils then were entirely gone. It is his custom to make a record concerning every patient; to secure a history of the case. It is his custom to write down everything they tell him which is important to the case. He did that in this case and produced his record. He got the history of the case from her father, Kobert Schmidt, her guardian in this case. On this record there appears language to the effect “had tonsils removed six years. Moeller.” It
“Q. Did Mr. Schmidt not say to .you then when you asked ‘Who did this ?’ ‘Dr. Stone,’ and did you not say, ‘That is an awful job V ”
“A. If he said Dr. Stone it would have been on the record.”
“Q. I did not ask you that.”
“A. Then he didn’t say that.”
“Q. Did you say that ?”
“A. I did not.”'
“Q. And you had no independent recollection of having said that V*
“A. No, I never said that.” (223)
He further explained that he did not make any notation of this fact that she had had adenoids because in practically every case of diseased tonsils in a child of that age, there are adenoids as well. Then he was asked the question:
“Q. Did you say anything to this patient at that time in regard to her swallowing ?”
“A. I can not recall definitely.”
“A. No, I don’t remember that.” (224)
No objection was made by the defense to these questions and answers. They were received without objection. Further, upon cross-examination, this doctor testified that he discovered an unnatural condition in the examination that he made. The lower poles of the tonsils were still there. The upper and middle portions of the tonsils had been removed, the lower part, not at all. Tie looked at the time at the ■place where the uvula ought to be. It was gone. He noticed no injuries to the soft palate itself. There might have been some scars on It. The witness took the card and before the jury, using the plaintiff as an exhibit, he showed where the scar was. He indicated on the patient the place where the scar was at the time she came to his office, lie pointed out pillars that extended down to the tongue; also the soft palate there; also that the small portion of the soft palate which was adhering to the anterior pillar was scarred: that the scar is not there now. He removed it. There is no scar on either side and no remains of tonsils. Otherwise, in his evidence the doctor explained the function of the uvula and the methods of operation in removing tonsils and adenoids. From the result of the examination made before and after the trial he stated that the throat of this little girl was in good condition ; that it showed evidence of the previous operation but at the present time, with the exception of the absence of the uvula, the throat seemed to be a good functioning throat. He testified that the uvula is frequently removed, ofttimes with beneficial results; that it has a tendency to become inflamed easily and swollen up like the tonsils; that he has never seen a case of removing of uvula with any injurious effect; that it is often removed to prevent recurrent inflammation with. no bad results; that, in general, the removal of the uvula would not cause headache or inhibit the action of swallowing; that the removal of this uvula from this girl’s throat did not, in his opinion, in the least affect her health; nor has it affected her voice; that the removal of the uvula has no detrimental effect whatever; that, in operations, there is more danger in removing accidentally the uvula in a tonsil operation than in an adenoid operation. The doctor further testified that he did not consider that the uvula performed any function. He has come to
“Q. From the examination of this young lady’s throat, do you find there is anything in the formation or condition of her nose and mouth and throat at the present time that would hinder her eating any old kind of solid foods ?”
“A. I can’t see it?” (274)
The majority opinion finds that the testimony of Dr. Johns, the expert for the plaintiff, was sufficient to establish a causal connection between the loss of the uvula and the complaints and physical condition testified to by plaintiff and her mother. It is urinecessary, consequently, to state or review the expert testimony of Dr. Johns and the physical condition or defects of plaintiff as shown in the evidence.
The majority opinion states that no negligence is alleged based upon the adenoids or tonsilotomv operations per so. If the plaintiff was able to establish to the jury’s satisfaction that the defendant performed the operation, the gist of the action then was whether the defendant negligently, or carelessly, or without authorized consent, removed the uvula, and whether the plaintiff was damaged thereby. This is an action for malpractice. It is founded on a contract though sounding in tort. 30 Cyc. 1538. Dr. McCannell was a very important witness, an expert, for the defense. His testimony was of strong probative force, not only to show that the defendant did not perform the operation but also, if he did, that the removal of the uvula when the tonsils are removed is a proper thing for a skillful physician to do and is not a negligent and careless act; that, furthermore, the removal of the uvula occasions no damaging results; that, on the contrary, it is beneficial, since the uvula is a useless appendage serving no function and being subject to inflammation. Very readily, from the testimony given by Dr. McCannell through the opinions that he gave by his direct knowledge of his own operation, of his examination of the girl in 1919,
Hut the majority opinion asserts, concerning the contradictory statements made by this expert, that there is no evidence to show that such remarks had reference to the removal of the uvula; that they might refer to the general condition of the throat, or to the operation for the adenoids, or tonsils; that the evidence fails to show that such contradictory statements had reference to the only issue in the lawsuit, namely, the alleged negligent removal of the uvula; that accordingly, no foundation having been laid, the evidence in rebuttal to show such con- ■ tradictory statements should have been excluded. The issues concerning this question, as heretofore stated, related to a careless, or a negli•gent, or an unauthorized, removal of the uvula and also to the question of whether plaintiff had been damaged. The issues were broader Than a question of negligent removal. A negligent removal, an accidental removal, an unauthorized removal, as well as the question of any damages, were involved. In view of the issues as above stated and in view