Schmidt ex rel. Schmidt v. Stone

194 N.W. 917, 50 N.D. 91, 1923 N.D. LEXIS 78

• Court: North Dakota Supreme Court
• Decided: July 25, 1923
• Status: Published

Opinions

Johnson, J.

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 swallow food, especially on solids; that tbe food and water tended to go the wrong way; that her voice was affected and that she did not sing after the operation, although she did before-quite well; that she suffered from frequent and severe headaches, colds and earaches since the operation, but not before; that she had difficulty in swallowing and in talking; and that her enunciation was affected. Plaintiff herself testified with reference to some of these complaints that they were caused by the loss of the uvula. It was sought to establish by the testimony of Dr. Johns that there was a causal connection between the loss of the uvula and the complaints and physical condition testified to by plaintiff and her mother. In view of the fact that he is the only expert-testifying for the plaintiff, his testimony is of course very important. While it is not very definite or specific, we think that it is sufficient to support a verdict, in so far as it tends to show a causal connection between at least some of plaintiff’s ailments and the loss of the uvula. He specifically says he cannot say that the uvula is necessary in the act of swallowing; or that headaches would result from its removal. He further says that earache would not directly result from the removal of the uvula, but that there is a bare possibility that it might indirectly result therefrom. He does say that the removal of the uvula might slightly affect the voice and indirectly cause earache, that it tends to prevent liquids from going up into the nose, that is, he says the uvula closes in part the upper air passage; that in some cases its removal might tend to cause choking or strangling in swallowing foods, tho the witness, on cross-examination, said he could not say that the uvula was necessary in the act of swallowing; that there is a possibility that food might lodge in the pharynx and cause strangulation when the" uvula is gone. He says that tho uvula is often removed in general practice and whether it is removed when tonsils are taken depends on its condition. He says: “In many instances the surfaces closely adjacent to the tonsils are in infected tonsils usually badly inflamed, including the uvula. In certain classes of diseases and under certain circumstances it might be necessary to remove the entire uvula.” Again he says: “The presence of a diseased tonsil would have an influence upon the health of the uvula and there is a relation between the two in that way and I would expect to find a more or less diseased uvula where you have a diseased tonsil.” Under ordinary conditions, he savs, a person using ordinary care would not remove the uvula when removing tonsils or adenoids. There is no evidence as to whether the conditions were “ordinary” in this case. There is no chance or danger ordinarily, he says, that one removing adenoids would also remove the uvula. The tonsils are nearer the uvula and therefore it seems that there is a greater probability that the uvula might be removed during a tonsilotomy operation.

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 girl’s throat and found it in good functioning condition ; that the uvula was often removed by people who trained voices, in order to improve the sounding board quality of the palate, and that it is often beneficial to remove it; that he had never seen any injurious effects from the removal of the uvula; that -the uvula had no function in articulation and its removal has no tendency to impede swallowing; it has none but a remote connection with the eardrum and its removal could not cause earache; the removal of the uvula could not in the least affect the girl’s health or her voice; the uvula has nothing to do with swallowing; there are no injuries in the soft palate; ordinary mouthfuls of food wouldn’t touch the uvula. When the uvula becomes diseased, it is removed entirely. It has no function in voice production. The uvula wont prevent particles of food and water from going up into the pharynx, but the soft palate will. The witness further testified that his observation was corroborated by clinical experience; that the uvula hangs there as a useless appendage and is of no use in the human body. There is no physical basis whatever for the difficulty in swallowing in this case and the witness concluded that the girl was shamming and trying to deceive him. The difference of tone in the voice would be accounted for in the same way as the witness’ voice was different from that of the examiner. There is no injury. .Food going up the wrong way would not choke or strangle but would cause a slight burning sensation. He never heard of any body injured by food or water going up into the nose. Food particles or water passing upward frequently would not have any effect on the ears or cause pressure on the eardrums or cause earache. Earache is caused by retention of fluid in the middle ear cavity. The witness stated that his own daughter, a girl of twelve years had had an operation for the removal of the uvula with no bad effects whatever.

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, so as to produce any of the symptoms which the witness observed in the plaintiff on the morning of the day when the testimony was given, lie says, in substance, that the girl has no pains although she claims to have and that her condition is hysteria; to talk constantly about the matter for some years would produce a condition of mind that would ,aid in producing the symptoms noted and that the condition is not permanent, assuming that it is pretended. He says further that they •couldn’t find any books that had anything about the function of the ■uvula, altho he searched at the request of counsel for the plaintiff. He said that he would call the condition hysteria rather than sham, giving the girl thg benefit of the doubt. He says strangling will not cause •earaches, nor will food going up into the nose through the pharynx. There is nothing to improve there and no disease of any kind.

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 , 185 S. W. 864; Ewing v. Goode (C. C.) 78 Fed. 442. Negligence will not be imputed to a physician without evidence or proof thereof. Levy v. Vaughan, 42 App. D. C. 146; Spain v. Burch, 169 Mo. App. 94, 154 S. W. 172; Sheldon v. Wright, 80 Vt. 298, 67 Atl. 807; Marchand v. Bellin, 158 Wis. 184, 147 N. W. 1033.

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 deformed and the joint stiff after the operation and the foot was exhibited to the jury. The court held that the evidence of experts, in this respect, tho unanimous and undisputed, was not conclusive on the jury. In the case at bar, all the experts admit that much doubt and uncertainty exist among medical men as to the function, if any, of the uvula. Neither is the jury required to believe the testimony of defendants as to the conditions found to exist. Fausette v. Grim, 193 Mo. App. 585, 186 S. W. 1177. See also Browning v. Hoffman, 90 W. Va. 568, 111 S. E. 192, where instructions similar to those in the ease at bar were approved by the court.

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 all.” No evidence was produced to show whether the alleged remark was made with reference to the removal of the uvula or the adenoids or ronsilotomy operations, or all of them. He had said in the examination in eliief that he found that the upper parts of the tonsils had been removed as well as the adenoids. For aught that appears in the record, the alleged remark was made with reference to the general condition of the throat. The witness denied making any such statement. This alleged conversation was not touched on in the examination in chief and the alleged expression of opinion had no connection with the history of the ease as obtained by the witness at. the time; nor had the witness intimated any opinion as to the condition of the throat at that time, due to the negligent or skillful character of the prior operation. State v. Schonberg, 24 N. D. 532, 538, 140 N. W. 105. Thereafter, plaintiff sought to impeach him by proving that he did, in fact, ■make such statements and called for this purpose the father of the plaintiff and the plaintiff herself, both of whom testified, over objection, that the statements were made. This we believe was prejudicial error. If the contradictory statement, alleged to have been made by the witness McCannell, had reference to the general condition of the throat, due to the fact that the tonsils and adenoids had been removed, or dne to the manner in -which the tonsils and adenoids had been removed, it was wholly irrelevant to any issue in this case and was, accordingly, improper for the purpose of impeachment. No negligence is alleged based upon the adenoids or tonsilotomy operations per se. Becker v. Cain, 8 N. D. 615, 80 N. W. 805. The questions were upon immaterial and collateral matters and the answers were conclusivo against the party asking them. Ibid.; People v. Johnston, 186 App. Div. 248, 174 N. Y. Supp. 366; State v. Haynes, 7 N. D. 70, 72 N. W. 923; 40 Cyc. 2701, 2702. The effect of this testimony was, moreover, to make the alleged statement of Dr. McCannell substantive evidence against defendant, tending to show malpractice in the operation on the girl’s throat. As to the defendant, that statement was unsworn, was purely hearsay and would not be admissible. This was therefore an effort to introduce hearsay testimony indirectly and to give it probative force. Materka v. Erie R. Co. 88 N. J. L. 372, 95 Atl. 612.

The court further committed error, in connection with this testimony, in submitting to the jury the preliminary question of whether or not a foundation had been laid for the impeachment, by showing that the alleged contradictory statement was made with reference to the removal of the uvula or the uvula operation. Ordinarily, preliminary questions as to the admissibility of evidence are questions of law for the court and should not be submitted to the jury, unless there be a dispute in the testimony of witnesses, brought out during their examination, as to the existence of the necessary preliminary facts. King v. Hanson, 13 N. D. 85, 103, 99 N. W. 1085. Such is not the situation here. There was no evidence whatever before the court to the effect that the alleged contradictory statement had reference to the onljr issue in the lawsuit, namely, the alleged negligent removal of the uvula. There was, therefore, nothing to submit to the jury and, no foundation having been laid, the evidence should have been excluded. 38 CyC. 1513, 1514; Guinn v. Phoenix Ins. Co. 80 Iowa, 346, 45 N. W. 880; Thomp. Tr. §§ 318 — 338; Tarver v. State, 137 Ala. 29, 34 So. 627. This exception to the general rule that the court must decide the preliminary facts and the jury the ultimate facts, applied by this court in King v. Hanson, supra, has been criticised by some text writers and courts with some plausibility. Wigmore, Ev. § 2550. We do not think the exception should he enlarged. It has no application to the facts in this case.

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 this period he was, because of an injury to his arm, disabled from performing surgical operations and from practicing his profession, except perhaps the waiting of prescriptions.

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.

Biedzell, Nuessle, and Oiirtstianson, JL, concur.