Robinson v. Crotwell

57 So. 23, 175 Ala. 194, 1911 Ala. LEXIS 411

Opinion

SAYRE, J.

For some years plaintiff had been .treated by the defendant and other medical men for tic douloureaux, an exceedingly painful disease of the nerve which supplies the face Avith sensation. In keeping Avith the general, if' not universal experience, medicaments had been of no avail. Defendant, Avho kept a.hospital, advised an operation, and, after consulting Avith. plaintiff, procured his brother, who made a specialty of surgical cases, to perform the operation for a compensation agreed upon, and to be paid by the plaintiff. Doctor E. M. Robinson, defendant’s brother, Avas not interested in the hospital, nor had any business connection with the defendant. The operation was not successful in relieving the suffering caused by plaintiff’s specific disease, and, besides, left him with some disgfiurement, and without the protection afforded the brain by the hard plate of his skull over an area of 2% by 1% inches. After Avar ds plaintiff brought this suit for malpractice, and recovered a verdict and judgment for a good found sum. Defendant appeals.

Counts 1 and 2 were eliminated by judgment on demurrer. The remaining counts, upon which the case Avent- to the jury, proceeded upon íavo theories: (1) That defendant performed, or caused to be performed, upon plaintiff a serious operation, without his consent; (2) that defendant unskillfully or negligently diagnosed or treated plaintiff’s ailment. Defendant’s alleged default in each case is averred to have caused grave injury to plaintiff in particulars which are set out. We do not find that the demurrers pointed out any defect in the complaint on which the case was tried.

Many assignments of error are based upon the giving and refusal of instructions and some upon rulings on questions of evidence. These assignments have been examined seriatim, and we are not ready to affirm error of any of them. So far as the exceptions relating to questions of evidence are concerned, the rulings in the trial court are to be justified on grounds which are familiar, and Ave do not feel that any good is to be accomplished by noticing them’ at length.

As for the charges, those given at the instance of the plaintiff assert principles of law which seem entirely plain. The appellant criticises those numbered 1, 2, and 4 as stating propositions of law pertinent to hypotheses of fact Avhich had no support in the evidence. We think it Avill appear from a discussion of the evidence, to AAdiicli we Avill come later on, that there was at least a scintilla of evidence to support the plaintiff’s case in at least one of its general aspects, as well as those particular features presented by these charges. Even though the facts were othenvise, the charges would be abstract merely, in Avhich case errors could not be predicated of their giving, unless it appeared from the whole record they did in fact mislead the jury to the appellant’s prejudice.

Of charge 6 appellant complains, because it holds a physician or surgeon responsible for his negligence; whereas he is responsible only for the proximate result of such negligence. But appellant’s argument'mistakes the purpose and effect of the charge. It does not deal Avith the question of the necessary intimacy of the connection between recoverable damages and the cause out of AAdiich they arise. It does no more than state the sound general proposition that no degree of skill on the part of a physician or surgeon, no knowledge of his profession or power to perform its duties, Avill relieve him of responsibility for the consequences of-a negligent and tortious failure to exercise that skill in behalf of his patient.

Charges 4 and 5, refused to the defendant, maintain the proposition that a physician and surgeon is responsible civilly for gross negligence only. Such is the measure of his responsibility in criminal prosecutions, but a civil action may be sustained on proof of a failure to exercise such reasonable care and skill in respect to the duty assumed as physicians and surgeons in the same general neighborhood, in the same general line of practice, ordinarily have and exercise in like cases.- — McD onald v. Harris, 131 Ala. 359, 31 South. 548; Shelton v. Hacelip, 167 Ala. 217, 51 South. 937; Hamrick v. Shipp, 169 Ala. 171, 52 South 932; Carpenter v. Walker, 170 Ala. 659, 54 South. 61.

Charge 9 exempts medical men from liability for mere errors of judgment, provided they give the patient the benefit of their best judgment. The charge is defective, in that it requires of medical men no skill whatever. There is in it no requirement that the judgment brought by the professional man to the discharge of his duties shall be informed and educated according to the standard of the time and general locality, as the law requires. — 2 Jaggard on Torts, 912; cases, supra. The charge in the shape proposed by the defendant was incomplete, misleading, and in consequence properly refused.

Charge 21 was misleading and refused without error. There was no pretense that defendant had by malpractice induced plaintiff’s -disease. But without the disease plaintiff would not, it may be assumed, have suffered the injurious consequences of an operation performed, as he alleges, without his consent, or without the exercise of due care and skill, so that, in a sense, plaintiff suffered these consequences by reason of his disease. The disease was the occasional cause of the injury complained of, while, on plaintiff’s theory of his case, defendant’s malpractice was its efficient cause. If the alleged efficient cause existed, as alleged, plaintiff was entitled to recover. Defendant could not require the court to give in charge to the jury a statement of the law involving such discriminations, unless with a clear statement of them. The only effect of the charge would have been to obscure the issue and confuse the jury.

The considerations upon. which we have ruled that the court properly refused to give charge 9 will suffice to justify the court in refusing charges 29, 51, and 59. It may be further said of charge 29 that, while appellant no doubt had in mind the methods of skilled and careful medical men, as furnishing a proper standard by which to judge defendant’s treatment of plaintiff’s disease, the charge is not so written.

The refusal of charges 31 and 56 may be justified on the ground that they were capable of a construction which would fix upon the plaintiff the burden of proving one certain aspect of his case as a condition to recovery; whereas, in both pleading and evidence, plaintiff was proceeding at the same time upon another and entirely different alternative theory, proof of which would have entitled him to verdict and- judgment Avithout reference to that aspect of the case Avith Avhich the charge attempted to deal.

•Charges 42 and 43, when read in connection Avith the pleading and testimony,, have a common fault. If plaintiff had a temperamental or physical weakness which could not be foreseen, and which contributed to the failure of the operation, defendant would be nevertheless liable, if he contributed to plaintiff’s injury by a failure to exercise du,e care and skill, or by performing upon plaintiff a serious operation without his consent, express or implied. We do not, of course, intend to say that there may not arise grave emergencies in which a surgeon may operate upon his patient without his knowledge and consent. Clearly this was not a case of that character.

Forty-five was properly refused, because it directed a verdict for the defendant on one aspect of the case, ignoring plaintiff’s contention, which had support on the face of the evidence, that the defendant caused a serious and unsucqessful operation to be performed upon plaintiff, after assuring the latter that the operation would be superficial in extent and unattended by serious risk.

A number of the questions which arose during the progress of the trial were of such character, were so far apart from the field of general knowledge, and so peculiarly within the scope of professional learning and experience, that the testimony of the expert witnesses was entitled to great consideration by the jury. Still the jury could not be required, as matter of law, to accept the conclusions of such witnesses. They were to determine for themselves, theoretically at least, the weight to be accorded to the expert testimony, and to base their verdict upon their own judgment of the facts. — McAl lister v. State, 17 Ala. 434, 52 Am. Dec. 180; Andrews v. Frierson, 144 Ala. 470, 39 South. 512. Charge 44 was properly refused to the defendant.

Charge 57 assumes that the operation was properly performed, and was well refused for that reason.

By charge 38, the defendant sought to have the jury instructed that if, after consideration of all the evidence, their minds remained in an unsettled state in respect to the question whether the plaintiff was entitled to recover, their verdict should he for the defendant. It has been frequently decided that the plaintiff carries the burden of proving his case to the reasonable satisfaction of the jury, and that a charge which omits the word “reasonable” in connection with “satisfaction” is erroneous. — L. & N. R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 South. 760. In stating this burden of proof to the jury, there was no occasion for the use of an untried term, which may have produced upon the minds of the jury an unwarranted impression in respect to the weight of the burden placed by law upon the plaintiff. “Settle” is a strong word. It implies that the mental state to which it is applied has become fixed, permanent, and not subject to change. The charge here adopted by the defendant was a doubtful equivalent for that statement of the law on the subject which is familiar to the profession in this state, and we are not disposed to affirm error of its refusal.

An examination of the record discloses such conflict in the evidence on all points as to preclude the affirmative charge upon the whole case. Charges, other than those which have been discussed, amounted to directions to the jury on the theory that plaintiff had introduced no evidence whatever to sustain his case. Under the rule prevailing in this state in respect to the functions of court and jury in the determination of disputed issues of fact, these charges were properly refused, and this, notwithstanding our opinion that upon the whole evidence plaintiff’s case was so thoroughly uprooted and overturned that the verdict of the jury should not have been allowed to stand against defendant’s motion to set it aside, as against the great weight of the evidence.

In one aspect of his case, plaintiff claimed that defendant caused a dangerous operation to be performed upon him, After assuring him that the operation to be performed would be a mere trifle, as operations go, and would involve no serious consequences. As has been stated, the operation not only failed to relieve plaintiff’s ailment, but left behind injurious consequences of its own. If plaintiff’s contention in this regard be true,, and it had support in his testimony, defendant’s conduct would seem to be indefensible. The cases so hold. ■ — Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 1 L. R. A. (N. S.) 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303, and note. But a careful consideration" of the evidence leaves us with an abiding conviction that the verdict, if rendered on this aspect of the case, ought not to be permitted to stand. Defendant was a reputable physician. He had attended the plaintiff at intervals since the latter’s childhood, and through many months he had treated him for the specific disease of which it was proposed to relieve him by the operation in question. He had the plaintiff’s confidence. The operation was performed in the presence of three other physicians, nurses, and three brothers of the plaintiff. It was dangerous, difficult, and of doubtful result at best. The defendant and 1;wo of the other physicians swear that the plaintiff was specifically informed of the nature of the operation Avhich it was proposed to perform. The fourth Avas not examined on this point, and Ave assume that he kneAV nothing of the preliminary conferences with the patient. It is an undisputed circumstance of great and peculiar weight in this case that nearly a year elapsed after the operation before plaintiff, or any one for him, intimated that he had a grievance by bringing this suit or otherwise, and that in the meantime plaintiff, without a Avord of complaint or reproach for the great Avrong which he noAV says had been done him, returned to defendant for treatment, and consulted with him about having the operateion repeated. Perhaps nothing short of a repetition of all of it could make clear how great was the weight of the testimony against the plaintiff’s contention. The wrong attributed to the defendant was so utterly without motive, so wide a departure from the principles and practices of an honorable profession, the complaint so long delayed, and the general lack of verisimilitude so great, that, without going further into detail, and after indulging that large intendment in favor of the verdict of the jury and the judgment of the trial court which the law demands of this court on appeal, we state our conclusion that, if the verdict in this case is to be referred to that theory of the plaintiff’s case now under consideration, it ought to have been set aside on the defendant’s motion. It is true that plaintiff did not insist upon this theory of his case without qualification, for he testified, as an alternative, that if he was informed of the character of the operation he was so informed after his faculties had been so benumbed by an opiate, administered by the defendant, that he could not and did not understand or consent. But on this point the evidence was equally as clear, and the considerations referred to make this alternative as unworthy of belief as the other.

But appellee complained in the court below that the defendant had unskillfully or negligently diagnosed or treated his case. Of error in diagnosis there is not a particle of evidence. As for any unskillfulness or negligence which may have characterized the operation and affected its results, assuming, for the argument, that the jury were authorized to find there was such, that operation was not performed by defendant, but by another surgeon, under circumstances which have been stated. That this other surgeon did perform the operation, proceeding upon his own judgment as to what ought to be done and how, is without dispute. The defendant took part to the extent only of administering the anaesthetic, and advising that the effort to complete the operation he abandoned on account of the patient’s ebbing vitality. There is no suggestion that -in these things he showed any lack of skill or committed any error. Nor is there any suggestion in pleading or in proof that defendant negligently advised the employment of an unskillful or incompetent surgeon to perform the operation. Under these circumstances, the defendant was not responsible for any default on tbe part of the operating surgeon, who was practicing his profession as an independent agent. — Myers v. Holborn, 58 N. J. Law, 193, 33 Atl. 389, 30 L. R. A. 345, 55 Am. St. Rep. 606. But it is argued, as we read the brief, that defendant contributed to the result of the operating surgeon’s alleged negligence by furnishing an inadequately equipped place in which to perform the operation. This, however, leaves the question at issue to depend upon defendant’s responsibility for the operating surgeon; for, if the condition of the hospital and its equipment was such as, in itself, to import an element of negligence or unskillfulnes into an operation performed there, the responsibility rested upon the surgeon, whose judgment determined upon and directed tbe operation. Moreover, the medical men who testified in the case including Dr. Waldrop, upon whose testimony plaintiff’s case at last depended, and who had performed operations there, gave their approval to the hospital.

There seems to have been an effort to fasten responsibility upon defendant for some unskillfulness or neglect of Dr. Caldwell. Dr. Caldwell was associated in business with the defendant, and it was open to the jury to find that at a time prior to the operation he had given the plaintiff some unskillful advice about his case, and the extent and character of the operation which might be expected to effect a cure. But that was one reason why the defendant, Caldwell, and the operating surgeon were careful afterwards to inform plaintiff of the true nature of the operation. Dr. Caldwell was also present at the operation, and lent some assistance; hut there is an entire absence of evidence to show that his advice was followed in any particular, or that he was guilty of any negligence in doing what it fell to him to do.

On consideration of the whole case presented by the record, which contains all the evidence, we conclude that the jury were more moved by sympathy for plaintiff, who had undergone an unsuccessful operation, than by a consideration of the law and the facts upon which the results should have been made to turn. There is no rule of responsibility which requires of the physician or surgeon infallibility in the diagnosis or treatment of disease. — Hamrick v. Shipp, 169 Ala. 171, 52 South. 932. In the exercise of its supervisory power over the findings of a jury, the court should proceed with great caution; but it should leave no evident mistake unrighted. The trial judge in this case deferred too much to the jury’s finding. The judgment should have been set aside on the defendant’s motion.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.