193 P. 397 | Mont. | 1920
Lead Opinion
delivered the opinion of the , court.
This is an action brought by the administrator of the estate of Edson Currier, deceased, for alleged malpractice growing out of the treatment of said Currier, following injuries which he had received in an accident.
Currier was employed by the Anaconda Copper Mining Company at the West Colusa mine in Silver Bow county on the twenty-ninth day of December, 1913, and for some time prior thereto, on which date he was injured, sustaining an impacted fracture of the right hip-joint or neck of the femur, accompanied with a dislocation of the hip-joint, while in the discharge of his duties. The Murray Hospital, under a contract between it and the mining company for the benefit of
At the close of the case defendants moved the court for a nonsuit upon the ground that the evidence was insufficient to justify a verdict in favor of plaintiff. The motion was granted as to defendant T. J. Murray but denied as to the remaining defendants. Plaintiff had verdict. From the judgment thereon, and from an order denying a motion for a new trial, the defendants appealed.
It is conceded by practically all of the physicians, whether testifying for the plaintiff or the defendants, that an impacted fracture of the neck of the femur presents unusual difficulties in treatment and diagnosis, and that such an injury is of a very serious nature to the patient.
There is also- testimony to the effect that Currier was suffering from stricture of the urethra. One of the physicians testified that Currier, shortly after coming to the hospital, informed him that he was suffering from the effects of gonorrhea, contracted some considerable time previously, and that he did not want the fact disclosed to his wife, and that it was not made known to her. For some days, to permit urination, he was catheterized. After his death an autopsy was held, when, in addition to the impacted fracture, .the
It is contended by the defendants that the septic condition which caused his death was because of the gonorrhea and stricture, and that, when injured by the accident, the germs passed through the lymphatic system and found lodgment in the hip, the spot of weakest resistance in his system, and that the purulent condition of the hip was in no wise caused by lack of care, nor could it have been prevented by the exercise of care and treatment. There is testimony as to the treatment given him for the stricture. Mrs. Currier denies that he suffered from gonorrhea, and testified that for about eighteen years prior to the accident she had been his wife, during which time they had sustained the usual relations of husband and wife, and that she had never, contracted the disease. There is also medical testimony that, had he suffered from gonorrhea, she would have been likely to contract the same. Special interrogatories were submitted to the jury as to whether Currier was suffering from stricture or gonorrhea, and as to whether the septic condition was caused by such afflictions. Upon these the jury found in the negative.
Appellants’ first specification is based upon the court’s
Plaintiff’s counsel, in examining physicians testifying in his
Experts are permitted to give their conclusions because of their presumed knowledge of subjects with which the ordinary layman or juror is not conversant. These opinions may be
Error is also assigned because plaintiff’s counsel was
Currier was entitled to an ordinarily careful and thorough examination, such as the circumstances, the condition of the patient- and the physician’s opportunities for examination permitted and demanded. (30 Cyc. 1575; Burk v. Foster, 114 Ky. 20, Ann. Cas. 304, 59 L. R. A. 277, 69 S. W. 1096.) In Stevenson v. Gelsthorpe, 10 Mont. 563, 27 Pac. 404, this court said: “The physician is under an implied obligation, when he undertakes to treat diseases or injuries, to bring to his aid such obtainable remedies and appliances as discovery and experience have found to be the most appropriate and beneficial in aiding recovery. But in some cases the best and most appropriate appliances or remedies may be very simple andi commonplace, and it may be the highest type of skill which applies these simple things to aid nature in it healing processes.”
It is undisputed that defendants did not use the X-ray until the thirty-sixth day. The physicians in effect say they had no reason to suspect the existence of the fracture, and that, even if they had discovered it earlier, there would have been no change in the treatment under the conditions existing, and it conclusively appears that there was no change in treatment prior to the discovery of symptoms indicating pus. Plaintiff’s-experts were asked if the failure to use the X-ray under the conditions was want of care. To this question Dr. Sullivan answered: “If, assuming that a man had an injury to the hip, and having an X-ray machine at my disposal if I had any doubt whatever as to the condition existing, I would use the X-ray.” Again, in answer to a hypothetical question, he testified: “Well, I would say in a condition of that kind, if the physician had any doubt as to the diagnosis, why I say they didn’t use the means that ordinarily are used, having an X-ray to find out what the diagnosis was. But the question does not presuppose whether or not there was any
Dr. Matthews, another witness for plaintiff, testified: “Personally I absolutely refuse to treat fractures without an X-ray picture.” He also testified: “As to the use of the X-ray machine in cases of impaction in Butte, in December, 1913, and the early months of 1914, I know what my practice in the use of it was; I don’t know the-general practice.”
Deceased was entitled to a careful examination. Whether the conditions surrounding the patient demanded the use of the X-ray was a question for the jury. An examination with the aid of the X-ray would have disclosed the fracture. The testimony was elicited with the evident intent of showing that the failure to use the X-ray was want of care, and to show that Currier was not given a proper examination. In view of the answers of the experts, as given above, as to the circumstances under which they use the X-ray, the defendants were entitled to the benefit of the instruction. Whether or not the physicians were guilty of failure to use reasonable care and diligence in discovering the extent of Currier’s injuries was necessarily involved in the question as to whether he received proper treatment and examination. The only
The answers of Dr. Sullivan and Dr. Matthews do not disclose the necessity of the use of the X-ray except in case of doubt, and Dr. Mhtthews merely says that he uses it in his^ own practice in all cases, but does not know the practice of others in that regard. Such testimony does not prove negligence nor want of care or skill. Under any conditions, whether or not failure to use the X-ray to determine the nature and extent of Currier’s injuries was a question to be decided by the jury and the/ instruction should have been given. (Viita v. Donlan, 132 Minn. 128, 155 N. W. 1080; Stevenson v. Yates, 183 Ky. 196, 208 S. W. 820. See, also, Wojciechowshi v. Coryell (Mo.), 217 S. W. 638.)
Appellants urge objection to instruction No. 18 upon
Appellants tendered an instruction to the effect that if
Appellants requested the court to instruct the jury: “No. 39. The court instructs the jury that the question as to whether
“No. 46. You are instructed that expert evidence is entitled to importance only when fairly given by one properly accredited through his experience and study in the particular science upon an hypothesis which is true in the relation of its parts to the whole ease, which is the subject of inquiry; that is to say, the value of the opinion of an expert witness depends upon the knowledge, learning, and experience of the expert and upon the facts upon which it is based. Therefore in this case, if you find that the opinions expressed by any expert testifying herein were given in answer to hypothetical questions which were incomplete in the presentation of the material facts as shown by the evidence, you are at liberty to give the testimony of such expert only such weight as you believe it may be entitled to in view of all of the established facts in the case.”
In Miller v. Toles, 183 Mich. 252, L. R. A. 1915C, 595, 150 N. W. 118, it is said: “It appears to be the contention of the plaintiff that, having laid before the jury the facts surrounding the injury, the subsequent treatment, and the ultimate loss of the limb, the jury, in the absence of all testimony of an expert character tending to show malpractice, should be permitted to draw inferences of negligent conduct on the part of defendant. We have had occasion, very recently, to pass upon this identical question. In the ease of Farrell v. Haze, 157 Mich. 374, 122 N. W. 197, the following request to charge was submitted on behalf of the defendant: ‘The question whether the loss of the plaintiff’s foot was attributable to anything that the plaintiff claims the defendant did or omitted
In Ewing v. Goode (C. C.), 78 Fed. 442, in the federal circuit court of Ohio, Taft, Judge, said: “In many cases expert evidence, though all tending one way, is not conclusive upon the court and jury, but the latter, as men of affairs, may draw their own inferences from the facts, and accept or reject the statements of experts; but such cases are where the subject of discussion is on the border line between the domain of general and expert knowledge, as, for instance, where the value of land is involved, or where the value of professional services is in dispute. There the mode of reaching conclusions from the facts when stated is not so different from the inferences of common knowledge that expert testimony can be anything more than a mere guide. But when a case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can (be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. Again, when the burden of proof is on the plaintiff to show that the injury was negligently caused by defendant, it is not enough
The supreme court of Iowa, in discussing the subject, said: “These questions are to be determined, of course, in the light of expert evidence as .to what a reasonably judicious and careful physician would do under like circumstances; but it was for the jury to say whether, in the light of the expert evidence, the plaintiff did exercise the care, skill and judgment required. [Citing authorities.]” (Kline v. Nicholson, 151 Iowa, 710, 130 N. W. 722.)
In the earlier case of Ball v. Skinner, 134 Iowa, 298, 111 N. W. 1022, the same court held: “A study of the precedents will develop some confusion in the statement of rules governing the weight and effect to be given expert testimony; but the reasonable rule, applicable at least to the great majority of cases, would seem to be that expert testimony is to be given consideration like all other testimony which the court allows to go to the jury, and accorded such weight as, in view of all the evidence of every kind and nature and its reasonableness and the apparent candor and competency of the witnesses, in fairness demand. (See note to Hull v. St. Louis, 42 L. R. A. 753 (138 Mo. 618, 40 S. W. 89.) All this is but another way of stating the elementary doctrine that the jury is to give the evidence, and all of it, full and fair consideration, and therefrom draw the conclusion which the judgments and consciences of the jurors approve as just and right.”
Judging from the text of the decision supra,, the instruction there condemned is more comprehensive than No. 39, above. The refused instruction would limit the jury in its consideration of the case hot only to the opinion of the experts as to what is the proper standard in the matter of care and treatment, but - also to their opinion, and theirs only, as to whether or not the defendants actually rendered the care and attention necessary and proper, and would in effect direct the jury to disregard all facts detailed by lay witnesses concerning conditions upon which their testimony was relevant and material. There can be no question that recovery could not be had without expert testimony supporting the charge of malpractice, and the eases cited above are in accord with the great weight of authority. This court has previously expressed such views in Stevenson v. Gelsthorpe, supra, as follows: “It was reserved to those witnesses, learned in the science of medicine
Proposed instruction No. 46 should, upon request, have been given. It is in accord with the rules pertaining to expert testimony and answers to hypothetical questions. This court has said: “It was for the jury to say, after considering all the evidence introduced on both sides, whether the facts, thus assumed as established for the time being, were really established, and ^whether the opinion of the witness was worthy of consideration. (Lawson' on Expert Evidence, 152, 153; 1 Thompson on Trials, secs. 607-610, and cases cited.)” (State v. Crowe, 39 Mont. 174, 102 Pac. 579.)
Defendants tendered an instruction directing the jury to
The court also refused to give instruction No. 45, tendered by defendants, as follows:
*466 “The court instructs the jury that a physician or surgeon[11,12] is not bound to use any particular method of treatment, and if among physicians and surgeons of ordinary skill and learning more than one method of treatment is recognized as proper, it is not negligence for the defendants to adopt either of such methods; and the fact that some other method of treatment existed, or some other physician or surgeon testified in this case that he might- or would have used or advised the other or different method, does not even tend to establish negligence or improper examination or treatment on the part of the defendants; nor would it be an act of negligence or impropriety for the defendants not to have adopted such method, so testified to by such other physician or surgeon herein. ’ ’
As to whether error of judgment upon the part of a physician resulting in an incorrect diagnosis of the disease or injury from which his patient is suffering renders him liable is a question which has been frequently passed upon by the courts. In West v. Martin, 31 Mo. 375, 80 Am. Dec. 107, the court said: “Whether errors of judgment will or will not make a surgeon liable in a given case depends, not merely upon'the fact that he may be ordinarily skillful as such, but whether he has treated the case skillfully or has exercised in its treatment such reasonable skill and diligence as is ordinarily exercised in his profession. For there may be responsibility where there is no neglect, if the error of judgment be so gross as to be inconsistent with the use of that degree of skill that it is the duty of every surgeon to bring 'to the treatment of the case according to the standard indicated.” (See, also, Hansen v. Pock, 57 Mont. 51, 187 Pac. 282; Dorris v. Warford, 124 Ky. 768, 100 S. W. 312; 30 Cyc. 1578.)
Nor does the fact that other physicians might have adopted other methods necessarily render the attending physician liable, nor show negligence or want of skill or care. If the method adopted is one which has substantial medical support, it is sufficient. (Cozine v. Moore, 159 Iowa, 472, 141 N. W.
Nor is an incorrect diagnosis of itself sufficient to establish liability. The plaintiff must show that such mistake was due to failure to use ordinary care and diligence and to exercise reasonable learning, skill and judgment in his examination and treatment. (Nickerson v. Garish, 114 Me. 354, 96 Atl. 235; Von Boskirk v. Pinto, 99 Neb. 164, 155 N. W. 889; Sims v. Parker, 41 Ill. App. 284; Willard v. Norcross, 86 Vt. 426, 85 Atl. 904; Staloch v. Holm, supra; Brydges v. Cunningham, 69 Wash. 8, 124 Pac. 131.)
In Hier v. Stites, 91 Ohio St. 127, 110 N. E. 252, the court said: “In an action against a physician and surgeon for negligent treatment, * * * plaintiff must show that defendants treatment either did something that physicians and surgeons of ordinary care, skill and diligence would not have done under like or similar conditions, or that defendant omitted to do some particular thing they would have done under like or similar conditions, and must further show that the injury # * * resulted from the neglect or omission shown.”
The instruction should have been given.
Defendants contend that the plaintiff’s evidence tends to
.The judgment and order are reversed, and the cause is remanded for a new trial.
jReversed and remanded.
Concurrence Opinion
I concur in the reversal of the judgment for the reasons stated by Mr. Justice Hurly in the majority opinion. I am of the opinion, however, that there was not sufficient evidence to require the submission of the case to the jury.
From the nature of this class of cases, as abundantly appears from the authorities cited in the original opinion, there must be some expert testimony tending to show- that the
Concurrence Opinion
I concur in the order of reversal, but not in all that is said in its support. In my judgment, the evidence is insufficient to justify the submission of the case to the jury.