Beane v. Perley

• Decision Date: 31 December 1954
• Citation: 99 N.H. 309,109 A.2d 848
• Parties: Roger H. BEANE v. John R. PERLEY et al.
• Court: New Hampshire Supreme Court

Page 848

109 A.2d 848

99 N.H. 309

Roger H. BEANE v. John R. PERLEY et al.

Supreme Court of New Hampshire.

Argued Nov. 4, 1954.

Decided Dec. 15, 1954.

Rehearing Denied Dec. 31, 1954.

Robert P. Tilton, Laconia, for plaintiff.

Sulloway, Jones, Hollis & Godfrey and Irving H. Soden, Concord, for defendants.

BLANDIN, Justice.

The first question which we will consider is whether there was evidence to submit to the jury on the issue of whether the defendant John R. Perley, a general practitioner, was negligent in his post-operative care and treatment of the plaintiff and especially because he diagnosed the ailment as neuritis instead of arachnoiditis which it was later proven to be. The undisputed testimony was that arachnoiditis is a rare and complicated condition of generally unknown origin occurring only once in about 10,000 cases and that the defendant Perley had never in his twenty-five years' experience seen such a case. Neuritis on the other hand is a common disease, and after deciding that this was what was causing the plaintiff's suffering, the defendant treated him for it. By the overwhelming weight of authority including this state, the question whether a physician uses ordinary care must depend upon expert testimony. April v. Peront, 88 N.H. 309, 188 A. 457, and authorities cited; 7 Wig.Ev. (3rd ed.) § 2090(a); 70 C.J.S., Physicians and Surgeons, § 62, p. 1006. The only exception to this rule is where the proof of negligence rests on matters of which the ordinary person may be expected to have knowledge. Mehigan v. Sheehan, 94 N.H. 274, 51 A.2d 632; Carbone v. Warburton, 22 N.J.Super. 5, 91 A.2d 518, affirmed 11 N.J. 418, 94 A.2d 680. In arguing that the issue of the defendants' negligence was properly submitted to the jury, the plaintiff relies principally on a question put to the defendant Perley relating to his diagnosis of neuritis: 'If there are examinations that can be given to assist in the diagnosis, does the patient have a right to expect that those examinations will be given, Doctor?' To this, after counsel had explained that by 'right' he meant 'Under the standard of care prevalent in this community,' the doctor answered, 'Yes.' It being conceded that certain examination or tests were not made, the plaintiff argues from this that in the circumstances here there was expert testimony from the defendant himself from which the jury could find that in failing to make the tests he did not exercise the care required by our law. Michael v. Roberts, 91 N.H. 499, 23 A.2d 361. However, we cannot isolate this single question and answer from its context. The defendant testified that he made his diagnosis to '[his] own satisfaction' on the basis of an examination, a number of observations, and the plaintiff's past history which included a recent virus infection. It was the doctor's opinion that the neuritis was an after result of the virus infection. He asserted that further tests to determine that the plaintiff had neuritis were 'not indicated,' that they were painful, unnecessary, inadvisable, and that in his opinion they would have told him no more than he already knew. The defendant also testified, 'You don't need an examination to determine neuralgia and neuritis * * * pain tells you that. The examination might tell you the distribution of it or where the nerves come from that are giving the pain.' It seems obvious that reasonable persons could not fairly construe the doctor's answer to counsel's interrogatory to mean that a physician must at his peril in all instances subject his patient to useless and painful tests before making a diagnosis regardless of the circumstances. The question whether they should be given must depend on the facts of each case and is obviously one for expert medical testimony. April v. Peront, 88 N.H. 309, 188 A. 457.

The situation here is distinguishable from that in Mehigan v. Sheehan, 94 N.H. 274, 51 A.2d 632, upon which the plaintiff relies. In that case one issue depended upon whether a physician 'forgot to treat for the breasts after the miscarriage,' 94 N.H....