Baerman v. Reisinger

• Citation: 363 F.2d 309
• Decision Date: 01 June 1966
• Docket Number: No. 19643.,19643.
• Parties: Katharine BAERMAN, Appellant, v. John Alfred REISINGER, M.D., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

363 F.2d 309 (1966)

Katharine BAERMAN, Appellant, v. John Alfred REISINGER, M.D., Appellee.

No. 19643.

United States Court of Appeals District of Columbia Circuit.

Argued January 26, 1966.

Decided June 1, 1966.

Mr. John J. Spriggs, Jr., Washington, D. C., for appellant.

Mr. Walter J. Murphy, Jr., Washington, D. C., with whom Messrs. H. Mason Welch, J. Harry Welch, J. Joseph Barse, Washington, D. C., and James A. Welch, Washington, D. C., were on the brief, for appellee.

Before BURGER, WRIGHT and TAMM, Circuit Judges.

BURGER, Circuit Judge.

This is an appeal following a directed verdict for the Defendant in a medical malpractice case. The gist of Plaintiff's claim was that Defendant, a cardiologist, had been negligent in failing to diagnose hypothyroidism for a period of six years when she allegedly suffered therefrom and in not referring her to another physician for diagnosis. Appellee argues in support of the District Court action that Appellant failed to produce any evidence of the standard of practice for like practitioners at the time Appellant was under Appellee's care.

The record reveals that Appellant, as Plaintiff having the burden of proof in the District Court, offered as a witness a physician engaged in general medical practice in Washington who had experience in treating patients suffering from hypothyroidism. The Defendant in the District Court objected to the physician's testimony on the ground he was not shown to be an expert in cardiology. After first indicating to counsel, "I think if you properly phrase your question, you can elicit from him what is the practice in the community among experts in this particular field," the District Judge then reversed his position and said, "No, I don't think you can because he is not an expert in the field." Counsel then put a hypothetical question to the physician which concluded, "Do you have an opinion with any reasonable degree of medical certainty whether that referring to the hypotheses would be accepted practice in the District of Columbia?"

The question setting out the hypothetical facts and indeed the final question on the physician's medical opinion were hardly models of adequacy or clarity, but we conclude the Trial Judge should either have ruled the hypothetical question gave inadequate foundation, so that it could be enlarged and improved, or in the alternative the physician should have been allowed to respond if he said he knew the practice and did not himself question the...