Smothers v. Hanks

34 Iowa 286

• Court: Supreme Court of Iowa
• Decided: June 21, 1872
• Status: Published

Opinions

Cole, J.

1. Instructions: construction of. I. The first error assigned is, that “ the court, in instructions, commented on the fact's, an<i plainly indicated to the jury what facts had been proved.”

The tenth instruction given by the court is, in part, the basis of this alleged error. It is as follows : “ If you find for the plaintiff, lie will be entitled to recover for the pain, anguish and. suffering of the body and mind, which be has suffered by reason of the want of ordinary skill and care on the part of the defendant, together with a fair and reasonable compensation for the future pain, suffering and anguish which it is reasonably certain from the evidence that be will yet have to suffer; and the loss and damage which you believe, as reasonable men, be will necessarily suffer by reason of the permanent injury to bis band in its effects on bis power to earn money and conduct business and improve bis prospects for life.” This instruction is one of a series, and follows others in which the questions of fact respecting the care and negligence of defendant, the injury to plaintiff, its causes and extent, are carefully and fairly referred to, the jury for their consideration and finding. the tenth, as above set out, is then given as a rule whereby the jury should measure the damages to which the plaintiff might be entitled upon the different hypotheses of fact before referred to them for their finding. Having thus in view the whole series of instructions, it can hardly be fairly said that the court indicated to the jury what facts bad been proved. When taken in connection with the other instructions given, we think the law is stated in the tenth c£in such a manner as to enable a person of common understanding to know what is intended,” and this is sufficient even in criminal law. Rev., § 1687. It may be true that the language of the instruction when subjected to the test of hypercriticism, may seem vulnerable to the objection made; but not so, when fairly construed and taken in its plain and ordinary meaning. There could be, of course, no objection to stating the substance of the instruction in more guarded and unmistakable language. the same, in substance, may 'be said of the other instructions, to which the same objection is made.

2. Physicians: liability of: negligence. II. It is next assigned that the court erred in giving the seventh instruction, which is as follows: “ If the defendant undertook, in the capacity of a surgeon, to treat the fractured arm of the plaintiff, he thereby contracted to possess and employ, in the treatment of the case, such reasonable skill and diligence as are ordinarily exercised in the profession by thoroughly-educated surgeons, having regard to the improvements and advanced state of the profession at the time; and if he has failed in so doing, without any fault or neglect of the plaintiff, he is liable in damages therefor.”

In our opinion this instruction does not give the true legal standard as to the skill and diligence required. The error consists in requiring the measure of skill and diligence ordinarily exercised by thoroughly educated surgeons ; whereas, the true measure is that ordinarily exercised in the profession by the members thereof as a body. That is, the average of the reasonable skill and diligence ordinarily exercised by the profession as a whole. Not that exercised by the thoroughly educated / nor yet that exercised by the moderately educated, nor merely of the well educated, but the rnerage of the thorough, the well, and the moderate — all, in education, skill, diligence, etc. "We do not stop to discuss critically the meaning of the term, “ thoroughly educated; ” nor is it necessary to prove that it means “ fully, completely and perfectly educated,” or that it necessarily implies an entire and perfect knowledge. It is enough that'it must mean that the standard of the skill and diligence was not the average of .the whole body of the profession, or in other words, ordinary skill, but was that exercised by some defined or undefined portion of the profession, or in other words more them mere ordi/na/ry skill. Of course in determining this ordinary skill, “ regard should be had to the improvements, and advanced state of the profession at the time ” the case was treated, for such regard is necessary in order to correctly ascertain the true standard of ordinary skill. It is also doubtless true that the standard of ordinary skill may vary even, in the same state, according to the greater or lesser opportunities afforded by the locality, for observation and practice, from which alone the highest degree of skill can be acquired. As to this last thought, see Shearm. & Redf. on Neg., § 436, p. 491. And as to skill and diligence generally as above stated, see id., §§ 431-443, and the cases cited in the notes. See, also, Howard v. Grover, 28 Me. 97; Simonds v. Henry, 39 id. 155; Patten, v. Miggin, 51 id. 595; Lawdon v. Humphrey, 9 Conn. 209; Reynolds v. Graves, 3 Wis. 416; Gallagher v. Thompson, Wright’s Rep. (Ohio) 466; Bowman v. Woods, 1 G. Greene, 441.

We are not disposed in any degree, not even in the very least, to let down or lower the true standard of professional skill or diligence, either in medicine, law, or other applied science. But we recognize the fact that this standard must be a practical and attainable one, and not one of mere theory or fancied perfection, the enforcement of which would cause much litigation, and necessarily drive from the profession a large portion of those from whose practice the largest measure of practical good is attained.

The case of McCandless v. McWha, 22 Penn. St. 261, is so often cited, and parts of the opinion by Woodward, J., so often quoted in text-boobs and cases, that we deem it proper to give it here a somewhat extended analysis. The case arose in Pittsburg, Penn., and was decided by the supreme court, 1853. The plaintiff had in some way, suffered “ an obtigue oommvnuted fracture ofi the tibia am,d fibula of the leg, which fracture was nearly half way from the ankle to the knee.” The defendant, a regular practicing physician and surgeon, was called to treat it. The plaintiff claimed that by the want of skill and attention by defendant, the leg had become shorter than the other. The defendant denied the want of skill, and alleged that the shortening came from the improper loosening by plaintiff of the bandages and extensions, and the previous intemperate habits of plaintiff. There was a jury trial in the court below, and the court instructed the jury “ that the defendant was bound to bring to Ms aid the skill neoessa/ry for a surgeon to set the leg so as to make it straight, and of equal length with the other when healed, and if he did not, he was accountable in damages, just as a stone mason or bricklayer would be in building a wall of poor materials, and the wall fell down; or if they build a chimney, and it would smoke by reason of a want of skill in its construction, they could not only not recover pay for building, but would be accountable for damages; and, if suits were more frequently brought, we would perhaps have fewer practitioners of medicine and surgery not possessing the requisite professional skill and knowledge than we now have. But it is due to the defendant to state that, with the exception of the matter complained of in this suit, there is nothing in the evidence given to show that he is not respectable in his profession.”

The opinion of a majority of the court was delivered by Woodward, J., and, in remarking upon the first instruction above, he says : “ It is impossible to sustain this proposition. It is not true in the abstract, and if it were, it was inapplicable to the circumstances under investigation. The implied contract of a physician or surgeon is not to cure, to restore a fractured limb to its natural perfectness, but to treat the case with diligence and skill. The fracture may be so complicated that no skill vouchsafed to man can restore original straightness and length; or the patient may, by willful disregard of the surgeon’s directions, impair the effect of the best conceived measures. He deals not with insensate matter like the stone mason or bricklayer, who choose their materials and adjust them according to mathematical lines, but he has a suffering human being to treat, a nervous system to tranquilize, and a will to regulate and control. The evidence before ,us makes this strong distinction between surgery and masonry, and shows how the judge’s inapt illustration was calculated to lead away the jury from the true point of the cause.

The question Vas not whether the doctor had brought to the case skill enough to make the leg as straight and long as the other, but whether he had employed such reasonable skill a/nd diligence, as are ordinarily exercised in his profession. Eor less than this he is responsible in damages; but if he be held to the measure laid down by the court below, the implied contract amounts on his part to a warranty of cure, for which there is no authority in law. * * * The only remaining error assigned (upon the other instruction) is scarcely worthy of notice. The action depended so entirely on its own circumstances, that the observation of the court as‘to the policy of such suits was irrelevant, and we may fairly presume harmless. But, for misdirection on the other point, the judgment is reversed, and a veni/re de novo awarded.”

The precise point decided by the case is, that physicians are not accountable in damages for a failure to make a perfect cure, just as a stone-mason or bricklayer is liable for .a failure to make a perfect job. What is above quoted from the opinion, is substantially all that legitimately pertains to it. But the learned judge says very much more, and some-of it is not entirely consistent with that we have quoted, while some of it is. To illustrate we quote further: “We have stated the rule to be reasonable skill and diligence; by which we mean such as thoroughly educated surgeons ordinarily employ. If more than this is expected, it must be expressly stipulated for; but this much every patient has a right to demand in virtue of the implied contract which results from intrusting his case to a person holding himself out to the world as qualified to, practice this important profession.” 'But afterward, he uses this language: “ The law has no allowance for guackery. It demands gualification in the profession practiced- — -not extraordinary skill, such as belongs only to a few men of rare genius and endowments, but that degree which ordinarily characterizes the profession. And in judging of this degree of skill, in a given case, regard is to be had to the advanced state of the profession at the time.” In our opinion, in this last quoted paragraph, the learned judge re-announced the correct rule of law, the same as he had in the body of the opinion as set out above. But in the preceding quotation, he announced a very different rule, to wit: “Such reasonable skill and diligence as thoroughly ed/ucated surgeons ordinarily employ.”

The whole case of McCandless v. McWha is a remarkable one. None of the evidence taken upon the trial in the court below was before the supreme 'court, except the deposition of one of the witnesses on the part of the defense, and yet, Lewis, J., without-dissenting from the opinion of Woodwajrd, J., filed an extended opinion in which he discusses, the merits of the case upon the evidence in the light of a large number of medical treatises, from which he quotes and upon which he comments. But he sums up his discussion with a statement that the main question is, “ Did the surgeon exercise ordinary skill and care in his reatmeni of the patient? If he did, he is not liable. If he did not, he is.” While Black, Ch. J., delivered the following opinion: " We all concur in the law of this case. The judge in his charge fell into an error in stating the amount of skill required in the treatment of the case. We reverse for that reason. But when we decide the legal point we are done with it. We are not authority on questions of surgery. Our hands are abundantly full with questions that belong to our profession, without volunteering opinions on sciences which relate to others. I think it necessary to say this in order to prevent the court below, on a second trial, from'supposing that we intend to give them any instructions on matters in which we have no jurisdiction.”

The fact that we now have before us two cases in which the courts below have been' led into error by quotations from Judge Woodward’s opinion, found in the notes in different text-books, has led us to give the case this extended notice. The point decided and the law actually ruled in the case, were right beyond question. But very much of the opinions of Woodward and Lewis, JJ., are outside of the case, and their observations are well calculated to mislead. It may not be out of place to remark, that a majority of this court concur with Chief Justice Black in his observation that “ our hands are abundantly full with questions that belong to our own profession without volunteering opinions on sciences which relate to others.” Bor the error in the instruction as before noticed the judgment is

Beversed.