By the Court, Mullin, P. J.
On the 28th of June, 1866, the plaintiff was thrown from a horse she was riding, in the village of Dansville, in Livingston county, and her elbow joint was dislocated. The defendant was a practicing physician and surgeon, residing in Dansville, and was called to set the limb. The plaintiff insists that the bones were never restored to their places, or if they were, that proper measures were not taken to keep them there, and that the result is that the joint has become stiff, and the arm almost useless.
There was a verdict in favor of the plaintiff, on which judgment was rendered, and from that judgment the defendant appeals.
The defendant took sundry exceptions to the rulings of the court, in admitting and rejecting evidence, and to the charge to the jury, and to refusals to charge as requested, which I will consider in the order they are presented in the points of his counsel.
The first exception is to overruling the defendant’s objection to the question put by the plaintiff’s counsel to the witness, Dr. Campbell; “what would be likely to be the consequences of an omission to flex the arm and rotate it as you have described?” The reply of the witness was not an answer to the question, and he did not answer it. He said, “ no; no one of the things is a certain sign that the bones are in place, and everything right; all of them put together would .make it very certain that it was in. Hone of them would do harm, and in the exercise of ordinary prudence and care it would be the duty of the operator to resort to them.” The question was repeated [509] without objection, and was not even then answered. The defendant was not prejudiced by the ruling.
The second exception is to overruling the defendant’s objection to the following question: “What about the possibility of an arm being stiff and straight two months after a dislocation. The injury on the 28th of June being stiff and straight, and the bones in place, on the 26th of August, do you think the bones could get out of place by the 28th of August without external violence ?” The defendant’s counsel objected to the question on the ground that Drs. Endress and Blake had not said the arm was straight and stiff. The objection assumes that the question was predicated on the testimony of the defendant and Endress, but it does not appear that the plaintiff’s counsel so intended. Indeed, there was evidence of other witnesses which would justify the assumption of the facts stated in the question. But assuming that the question was based on the evidence of Endress and the defendant. The plaintiff had testified that on Sunday, the 28th of August, she was at the defendant’s house at his request, and he and Dr. Endress examined the arm. The defendant testified that on that day he examined the arm and found it perfectly straight, and the hand supinated—that is, with the palm turned up. The bones, he thought, were then in place; he did not see how it could be out of place and be -straight. Dr. Endress testified that on the 28th of August the arm was straight and stiff'. Dr. Endress uses the very words of the question. Dr. Blake described the arm as straight, and says that he supposed the stiffness of the arm was caused by the muscles, thus assuming that the joint was stiff, as it unquestionably was; from the - time it was set, stiffness was one of the natural results of the injury, and it was to overcome it that the defendant, on repeated occasions, urged the plaintiff to rotate and flex it. Ho injury was done to the defendant in assuming as a fact what was repeatedly proved, and repeatedly re[510] ferred to, by the defendant himself, that the joint was stiff, although the words straight and stiff may not have been used together at the time referred to in the question.
The plaintiff’s counsel embraced in one of the questions on the subject, the condition of the arm on the first of September, the day on which the arm was reset by Drs. Reynale, Endress and Blake. After administering chloroform, the arm was readily bent, and this bending was relied on by the defendant’s counsel as evidence that the bones, on that occasion, were in their places, and if they were then in their places, that they were so from the time they were originally set. To meet and rebut this proof, physicians were afterwards called by the plaintiff to testify that it was possible to bend the joint to a very considerable extent, even if the bones were not in place. When Dr. Moore saw the arm, in the latter part of August, the joint was then dislocated, and of course the bones were not in their places; and unless they could be thrown in and out of place, at the will of the plaintiff, or by the action of the muscles alone, the inference might be that they were not in place on either of the occasions when" examined by the defendant, Endress and Reynale. I cannot agree with the defendant’s counsel, that the word “stiff” is used in the question in the sense that the arm had become rigid from the adhesion of the bones at the joint. It meant, in the question, precisely what is meant in the. testimony of the defendant and Endress—whether it was caused by the muscles or by the adhesion of the bones. There was not a false assumption of the facts stated in the question, and the objection was properly overruled.
The 3d exception is that the nonsuit was improperly refused. The motion for a nonsuit rested on the proposition that there was no evidence in the case that would justify the finding by the jury that the defendant had been guilty-of" any neglect or want of the requisite care and skill in-[511] reducing the luxation in the first instance, or in the treatment of the arm afterwards. The defendant’s counsel insists that the dislocation was properly reduced, and the joint remained in its place until the defendant was discharged, and another surgeon called. Whether this proposition was established, was a question for the jury upon conflicting evidence, and they have found against the defendant; and that finding we cannot disturb. All the surgeons agree that the general rule is, that in cases of dislocation the patient is able to know when the bones are restored to their places, by the noise made when they fall into place, and by the immediate relief from pain. The plaintiff did not hear the “snap,” as it is called, nor was the pain lessened. On the evidence, the jury were justified in finding that the bones were never restored to their places; and no surgeon, except the defendant and Bndress, has ventured to express an opinion that the dislocation was ever reduced. The defendant says that when he set the joint, he extended and rotated the arm, and thus satisfied himself that the bones were in place. The plaintiff says he did neither. It may be that the defendant was in better condition to know what he did on that occasion, and to remember it, than the plaintiff; but it was for the jury to say to which they would give credit; and there are circumstances which tend to show that the defendant did not bestow either much time or attention to setting the joint and dressing the arm. It is conceded, on all hands, that it was his duty to apply his hands, and thus satisfy himself that the bones were brought into place; and whether brought into place, could be ascertained with reasonable certainty by reference to the position of the condyles and olecrquon process. The defendant says he applied these tests, and the plaintiff says he did nothing but draw the arm around his knee and place it on a pillow at her side, bent to nearly a right angle. The plaintiff’s * sister and niece were present, but neither were inquired [512] of whether he did or did not do what he claims to have done. It would seem that when the limb extends and rotates freely, it is ordinarily sufficient evidence that the bones are in place. But if there is any doubt about it, it is the duty of the surgeon to measure the arm. This the defendant concededly did not do. It was for the jury to say, whether, upon the evidence of the plaintiff and defendant, it was established to their satisfaction that the defendant did not use the paeans which experience has shown to be proper and necessary, in order to justify the surgeon in assuming that he had restored the bones to their places, and thus secured the patient from great suffering, and, perhaps, the loss of the use of the limb.
The plaintiff" and the witness, Leach, saw the protuberance at the elbow joint the night of the injury, and Miss ■Miller says it was spoken of that evening, at the house; it was so prominent as to attract the attention of Leach; he compared it with the other elbow, and inquired what it was. How, this protuberance was evidence, to a surgeon, that the bones were not in their place; it was plain to be seen, as there was, at the time the defendant set the joint, and afterwards, when Leach was there, no swelling to conceal it. It was for the jury to say whether the failure to discover this evidence of the omission to restore the bones to their places, was evidence of want of attention or of want of skill; and if it was evidence of either, it was very significant.
. It appears that the arm retained, when not controlled by splints, about the same position it was in after the first attempt to reduce the dislocation, and at no time could the plaintiff move it without producing severe pain. The defendant insisted she must move it, and when she attempted it, the pain was so great she had to call in help, and even then had to cease the attempt, because of the suffering it caused. This was known to the defendant, and yet it does not seem to have put him on inquiry whether he had not [513] failed to properly set or treat the arm. The plaintiff was satisfied the j oint was never properly set, and she so told the defendant; and to ascertain whether her suspicions were well founded, she called on Dr. Moore, and finally employed Dr. Eeynale, to endeavor to restore to her the use of it. It is quite obvious that the work to be done by Eeynale was not understood by him and those assisting him, to be to the patient a painless effort, as it would be if it was merely putting in place bones that would fall into and out of place by their own weight, or at the will of the patient. They prepared her for it, by rendering her so unconscious that she did not feel a pin when inserted in the flesh. They then bent the arm, and put on bandages, and she awoke to realize the suffering to which the operation had subjected her. The arm, in ‘a short time, returned to its original position, and has remained there ever since. How all this occurred after the defendant abandoned the arm, but it reflects very much light upon the important question in issue here, whether the dislocation was ever reduced. The evidence satisfies me that it was not, and that there was a great want of care and skill in the attempt to replace the bones, or in the subsequent treatment of the arm. The surgeons disagreed as to the necessity of putting the arm in a sling after the dislocation is reduced, some insisting that it is necessary, in order to prevent a reluxation, which might occur if the arm was left without using this means of preventing it; while others insist that it is enough to leave the cure to nature, the surgeon merely applying or directing the application of cold water to the limb, in order to keep down inflammation. The defendant did not use a sling, and it was for the jury, after weighing the reasons assigned by the surgeons, for and against the use of it, to say whether it was negligence in the defendant to omit it.
The defendant’s counsel insist that as it is shown that surgeons do not agree in regard to the propriety of the [514] use of the sling, the jury were not at liberty to find there was negligence on the part of the defendant in omitting it. I cannot assent to this proposition, thus broadly stated. If writers on the treatment of dislocations, or if, in the absence of such authority, practical surgeons, prescribe a mode of reducing them, and treating the joint after the bones are replaced, it is incumbent on surgeons called to treat such an injury, to conform to the system of treatment thus established; and if they depart from it, they do it at their peril. In 2 Espinasse’s N. P. 601, it is said, it seems that any deviation from the established mode of practice shall be deemed sufficient to charge the surgeon ■with negligence, in case of an injury arising to the patient. If, however, it is shown that surgeons have applied a different system of treatment, and found it to succeed as well or better than the one prescribed, it is not negligence to resort to the system thus practically tested. But before the new practice can be used, to shield the surgeon from, the charge of malpractice, it must appear that the cases in which it was tested were substantially the same as those treated of by the writer, or with those treated by practical surgeons, and that the treatment thus resorted to has been successful in so many instances as to establish satisfactorily the propriety and safety of adopting it. The question is, as a general rule, exclusively for the jury, and in this case it was peculiarly so.
If, in case of dislocation of the elbow joint, it is enough for the physician to replace the bones, and to put the arm on a pillow, with the part below the joint at a right angle with that above it, and directing the application of cold water, it would seem to be proper, if not necessary, that the attending surgeon should inform the patient, or those having charge of him or her, of the nepessity of maintaining that position; and if there is a tendency in the limb to become straight, or if in consequence of the severity of the injury to the ligaments about the joint there is great [515] pain, which renders the patient nervous and restless, thus increasing the tendency to reluxation, or to straighten, and as a consequence to stiffen the joint, the danger should be disclosed, to the end that all proper precaution may be taken to prevent it. It is insisted that these dangers were imminent, and yet no word was given.. This was, in my judgment, culpable negligence; much of the suffering the plaintiff has undergone, and much of the loss she has sustained, might have been prevented, had the defendant done what it was clearly his duty to do, if he knew the consequences which might result from redislocating the joint or straightening the arm. It would seem to me that a sling would have in some degree mitigated, if not altogether prevented, the misfortune which has befallen the plaintiff.
Some stress is laid by the plaintiff’s counsel upon the abandonment of the plaintiff, by the defendant, a few days after setting the joint, or rather upon the representations as made by him to her on that occasion. I agree with the defendant’s counsel, that it was the right of the defendant to give up the care of the limb at any time, especially with the plaintiff’s assent; but if the defendant insists upon that consent as a shield from liability for any negligence of which he may have been guilty, or for any malpractice committed, it was competent for the plaintiff to show, if she could, that her consent was obtained by representations that were false. The plaintiff swears that the defendant represented that the dislocation had been properly reduced, and that he had done for her all it was necessary to do in order to give her a sound arm. These representations, she insisted on the trial, were untrue, and that she released him from further attendance believing them to be true. In order to meet any defense resting on the plains tiff’s consent to the defendant’s discharge, it was not necessary to allege the falsity of the representations, in the complaint. But if the plaintiff, intended to recover [516] damages resulting from the omission to call in surgical aid, because she relied on the alleged false representations, it was necessary that they should be alleged in the complaint. I do not understand that the plaintiff claimed to recover any such damages, and hence the necessity of the averment does not arise.
The next exception is to the charge of the judge that it was immaterial whether the defendant was or was not a skillful surgeon. It would be error to instruct a jury, in an action against a surgeon for malpractice, that it was not material whether the defendant in the action was or was not skillful in his profession. It is said in 2 Espinasse’s N. P. 601, if a person undertakes the cure of any wound or disease, and by neglect or ignorance the party is not cured, or suffers materially in his health, he may recover damages in this action; but the person must be a common surgeon, or one who makes public profession of such business as surgeon, &c.; for, otherwise, it was the plaintiff's own fault to trust to an- unskillful person, unless such person" expressly undertook the cure. Being liable if he holds himself out as surgeon, as well for want of skill as for negligence, the injured party may bring his action to recover for damages resulting from both, and recover on proving damages resulting from either. (Sear Prentiss, 4 East, 348. Slater v. Baker, 2 Wils. 359. 1 Wait’s Pr. 336, 390. Bellinger v. Craigue, 31 Barb. 534.) .
In this case the plaintiff charged want-of skill, as well as negligence. So far, then, as the pleading could make want of skill material, it was done. Taking the whole of the charge relating to the materiality of the question of the defendant’s skill together, I am satisfied that the judge did not intend to lay down to the jury the proposition so broadly stated as I have stated it. The judge says: £<I suppose it is entirely immaterial to the inquiry before you, whether the defendant, at the time he undertook the reduction of this dislocation, was or was not reputed to be, [517] or was or was not, a skillful surgeon. The question is, did he bring to the treatment of that particular case the degree of skill to which I have referred.” The degree of skill to which he referred, was that reasonable “ degree of skill ordinarily possessed by the members of the profession to which he belongs—the average skill of his profession.” By this language I understand the judge to mean, that if the surgeon does not bring to the treatment , of an injury, or of a disease, the ordinary amount of skill possessed by those in the same profession, it is immaterial how high his standing may be. If he has the skill, and does not apply it, he is guilty of neglect. If he does not have it, then he is liable for want of it. Whether, therefore, a surgeon possesses ordinary skill, may be material in an action for malpractice, but not whether he posseses a higher degree of skill. If this is the proper construction of the charge, and I am of the opinion that it is, I see no objection to it. If the plaintiff had sought to recover on the ground that the defendant did not possess ordinary skill, the instruction was wrong. But I do not understand that any such ground was taken ' the liability of the defendant was put on the ground that he did not apply that measure of skill in the treatment of the plaintiff'. It seems to me the defendant had no just ground of complaint against that part of the charge under consideration, if it is to receive the construction I have given it. If either party could justly complain of it, it was the plaintiff. I agree with the learned judge, that the questions to be decided were, first, whether the defendant possessed the ordinary skill of persons acting as surgeons; and, second, if he did, whether he was chargeable with negligence in not applying it in his treatment of the plaintiff. Whether he possessed greater skill, or had been successful in the treatment of other patients, was wholly immaterial in this case. The inquiry of the jury was brought within the proper limits.
[518] The defendant’s counsel excepted to the instruction to the jury, that it was .impossible -to show that a surgeon possessed the required skill, except by showing what skill he applied in the treatment of this particular case. If this part of the charge is to be construed by itself, without reference to other parts of it, I think the proposition cannot be supported. That a physician or surgeon possesses skill, may be shown by those of the same profession, who can speak from personal knowledge of his practice. When the point in issue is, whether skill was applied in a given case, the possession of skill, without proof that it'was applied, would be no defense to an action for malpractice. But there may be cases in which such proof is admissible. Evidence of the reputation and standing of the defendant as a surgeon'was received without objection, in Slater v. Baker, (2 Wils. 359.)
When it is proved that the surgeon has omitted altogether the established mode of treatment, and adopted one that has proved to be injurious, evidence of skill, or of reputation for skill, is wholly immaterial, except,to show (what the law presumes) that the defendant' possesses the ordinary degree of skill of persons engaged in the same profession. In such a case it is of no consequence how much skill he may have; he has demonstrated a want of it in the treatment of the particular case. In such cases I think the' proposition of the judge is right. The failure to use skill, if the surgeon has it, may be. negligence ; but when the treatment adopted is not in accordance with established practice, but is positively injurious, the case is not one of negligence, but of want of skill. It is said in Slater v. Baker, (supra,) that it is ignorance and unskillfulness to do contrary to the rule of the profession.
- In ascertaining the meaning of the charge now under consideration, the whole is to be considered. The judge had told the jury that the surgeon did not undertake to cure the plaintiff, but only to bring to the case that ordi[519] nary and reasonable degree of skill possessed by the average of the profession. He then proceeded to say that it had been said that if it be shown that the surgeon possesses that ordinary degree of skill, and that in the particular case in hand he exercises that skill with ordinary care and diligence, he then discharges his whole duty; such a rule, he thought, was calculated to mislead. He then told the jury he supposed it was entirely immaterial to the inquiry before them, whether the defendant, at the time he undertook the reduction of the dislocation, was or was not reputed to be, or was or was not, a skillful surgeon. The question then was, did he bring to the treatment of that particular case the degree of skill to which he had referred? This part of'the charge is not excepted to. The learned judge then added the remark to which exception is taken, and says, the question is, what skill the defendant applied in the particular case. How, by this charge, I understand the judge to say to the jury, the defendant is required to have an ordinary degree of skill—-whether he has any more is wholly immaterial. In the case then, in hand, the question for the jury was, whether the defendant applied that degree of skill; and whether he applied it can only be ascertained" by proof of the skill actually employed. If such is a reasonable construction of the charge, as I believe it to be, it is correct.
The next exception is to the charge, that if the defendant withdrew from the case while the plaintiff labored under a mistaken opinion that the joint had been properly reset, and was in a way to recover without further surgical aid, and that mistaken opinion was induced by his representations or his conduct, then he did not end his responsibility for the case by withdrawing from it. The instruction does not assume that the defendant had discharged his entire duty up to the time he abandoned the case. It is assumed that he had induced the plaintiff to so believe he had, and that belief was created either by the [520] acts or declarations of the defendant; and if it was so induced, his responsibility for the treatment of the case had not ended. If, by this instruction, the learned judge intended to say to the jury that the consent of the plaintiff that the defendant might abandon the case and not be liable for any damage which might thereafter happen to the arm, provided he had truthfully described its condition, I assent to it. That he so intended, I think is shown by a subsequent clause of the charge, in which he instructed the jury that as to what occurred after.the plaintiff consented that the defendant might abandon the case, the defendant was not responsible. I have already expressed the opinion that the consent of the plaintiff, if obtained by false representations, was no protection to the defendant against liability for damages that had occurred before the consent' was given. I am at a loss to understand what liability the learned judge intended to tell the jury the defendant was subjected to, if he misrepresented the condition of the arm and thereby obtained the plaintiff’s consent that he might abandon the case. If he was to be responsible for any injury thereafter to happen by reason of want of surgical care, it was at variance with a subsequent clause, in which he told them that the defendant was not liable for what occurred after that time. The only construction I can put upon it is, that if the plaintiff’s consent was obtained by fraud, the liability of the defendant for damages resulting from want of skill or care, prior to the plaintiff’s consent that he might cease to treat the injury, did not terminate, and thus understood, the charge was right. But if by reason of the erroneous advice given by the defendant to the plaintiff as to the condition of her arm, she omitted to call in other surgical aid, whereby she sustained injury, the defendant would be liable, but not in this action. The court had nowhere intimated that the jury might allow for any such injury. The charge is not subject to the criticism made • [521] by the defendant’s counsel, that the liability of the defendant was not made to depend on the truth or falsity of the defendant’s representations, but on the impression made on the plaintiff’s mind by his representations as well as his acts. It is impossible to misunderstand the meaning of the judge. He intended to say that if the defendant had, by his acts or language, induced the plaintiff to believe that her elbow had been properly set, and was in a fair way to be cured, and such acts and representations were false or unfounded, her consent did not discharge him. That the representations were false or unfounded, the jury might find upon the evidence, and that finding cannot be disturbed.
The next exception is to the refusal to charge that the defendant had the right to cease to attend the plaintiff, after reasonable notice. The court had charged that if the plaintiff consented to the defendant’s discharge, after notice of the actual condition of the arm, he was discharged. This was all the court was called on to say. The defendant had not assumed to discharge himself without asking the plaintiff’s consent, and a charge as to the abstract right of the defendant was not called for, and the request was, therefore, properly refused. If there could be any difference in the defendant’s liability when discharged with or without the plaintiff’s consent,» the request might have been proper, but he would be liable in either case for want of care or skill, unless consent should operate to release it.
The next exception is to the refusal to charge that if the negligence of the plaintiff contributed to the injury, the defendant was not responsible. The refusal was put on the ground that there was no evidence in the case of the plaintiff’s negligence, and I concur with the learned judge in the position. If there was any, it was the result of ignorance on the part of the plaintiff as to how the limb should be treated; that ignorance, it was the duty of the [522] defendant to remove, by giving her such instructions as to-its care, as would enable her not only to prevent injury, but to treat it so as to facilitate cure.
The two remaining exceptions are to the refusal to charge that if the plaintiff discovered anything out of shape, or out of place, before and after the defendant ceased to have charge of the arm, it was negligence in the plaintiff to omit to inform the defendant in the one case, or some other surgeon, in the other, of the defect. The only evidence on which to predicate these requests is that of the plaintiff, who testifies that at the time of the injury, and again in some .two weeks afterwards, she discovered a protuberance at the elbow. Whether she understood that this indicated any defect in the reduction of the luxation, we do not know; but she says that on several occa-. sions, before as well as after the defendant ceased to have care of her arm, she insisted to him that the joint had not been set. He repeatedly assured her that it had, and an objection now comes with bad grace from him, that she did not disclose to a surgeon of some twenty years practice, a fact that should have been discovered by a person of the most ordinary observation.
The defendant’s counsel objects to the use by the judge, in his charge, of the" remark, that a surgeon is required to exercise the “ average skill ” of his profession, and insists that it was calculated to mislead the jury. The true standard of qualification, as he insists, is “reasonable and ordinary skill.” I understand the charge to use the phrase employed as equivalent to the one employed by counsel. In another part of the charge, the judge says he (the surgeon) contracts that he will bring to the case that ordinary and reasonable degree of skill which is possessed by the average of his profession. Again, he says the rule is, that he undertakes to' bring to the ease the exercise of that reasonable degree of skill ordinarily possessed by the members of the profession. He then adds the expression [523] complained of by the defendant’s counsel: “I think it the reasonable rule that he is required to exercise the average skill of his profession.” It seems to me to be impossible to misunderstand this part of the charge. The judge lays down the rule as it is given by writers on the law, and by the judges in their instructions to juries, and a change of phraseology does not change the rule; at all events, it is obvious that the judge, in the last sentence cited, did not intend to modify or vary the rule as it had previously be^n laid down by him.
, / Much was said on the argument, as to the right of a surgeon to exercise his own judgment as to the modA of treatment he will adopt in the case of a wound, or of a disease" which he is called upon to treat; that neither the rules prescribed by writers, nor those acted upon by other physicians or surgeons, can apply to every case, and hence latitude must be allowed for the application of remedies which the attending physician or surgeon has found to be beneficial. If this is not allowed, the argument is, that all progress in the practice of surgery or physic must cease, and the afflicted lose altogether the benefits of experience and of remedies that science furnishes for the alleviation of human suffering. It must be conceded that if a surgeon is bound, at the peril of being liable for malpractice, to follow the modes of treatment which writers and practitioners have prescribed, the patient may lose the benefits of recent improvements in the treatment of diseases, or discoveries in science, by which new remedies have been brought into use; but this danger is more apparent then real. Some standard, by which to determine the propriety of treatment, must be adopted; otherwise experience will take the place of skill, and the reckless experimentalist the place of the educated, experienced practitioner. If the case is a new one, the patient must trust to the skill and experience of the surgeon he calls; so must he if the [524] injury or the disease is attended with injury to other parts, or other diseases have developed themselves, for which there is no established mode of treatment. But when the case is one as to which a system of treatment has been followed for a long time, there should be no departure from it, unless the surgeon who does it is prepared to take the risk of establishing, by his success, the propriety and safety of his experiment.
[Fourth Department, General Term, at Syracuse,
May 1, 1871.
The rule protects the community against reckless experiments, while it admits the adoption of new remedies and modes of treatment only when their benefits have been demonstrated, or when, from3 the necessity of the case, the surgeon or physician must be left to the exercise of his own skill and experience.
The judgment is right and must be affirmed.
Mullin,. P. J., and Johnson and Talcott, Justices.]