Browning v. Hoffman S.

Decision Date21 March 1922
Citation90 W.Va. 568
PartiesGeorge F. Browning v. C. S. Hoffman et als.
CourtWest Virginia Supreme Court
1. Physicians and Surgeons Evidence Held Not to Prove Negligence of Physicians or Nurses.

In an action to recover damages for alleged malpractice by physicians and surgeons operating a private hospital in which the plaintiff was treated for a serious wound of the leg, developing gangrene rendering amputation necessary, within forty-eight hours after it was properly dressed and the broken bones set, and in the temporary absence of the attending physician, but while the patient was attended by competent nurses and the hospital by an assistant physician and surgeon competent in all respects, whom the nurses where instructed to call, if necessary; evidence to the effect that the leg was gangrenous to the knee and discolored for a space of two or three inches above the knee at 2 or 3 o'clock P. M. of the second day, and that, in the opinion of a physician who saw it then, it could not have been in good condition at 10:30 A. M. of that day, taken in connection with proof that, in the morning, there was evidence of lack of circulation but no constriction norl gangrene, that efforts by approved methods, on the part of the nurses and assistant physician, to restore or increase circulation, had been constantly made throughout the forenoon and development of the trouble carefully watched until 2:30 P. M., does not appreciably tend to prove negligence on the part of the attending physician, in temporarily leaving the patient, or providing for his care and emergencies in his absence, nor on the part of the nurses and assistant physician, in respect of care and treatment of the patient, and an instruction assuming the existence of evidence appreciably tending to prove liability on such grounds, under such circumstances, cannot properly be given, (p. 573).

2. Same Physicians Held Not Liable for Mere Errors in Judgment.

Nor, assuming that the operating physician, before leaving late in the evening of the first day, visited the patient, or should have done so, and, if he did, saw or should have seen the chart disclosing a slight rise an temperature, pulse and respiration, could the court properly instruct the jury, upon that fact and the nature of the wound that he was negligent in temporarily absenting himself on a business mission, because such facts, taken in connection with the later developments, constitute no appreciable evidence of such negligence. A physician is not liable for mere errors of judgment. (p. 578).

3. Same Unqualified Instruction That it Was Hospital Physician's Duty to Notify Parents Promptly of Necessity of Operation Held Error.

If, in such case, it is shown that, when the necessity of amputation became certainly known at 2:30 o'clock P. M. of the second day, efforts were made to apprise the parents of the patient, a young boy, of the situation and obtain their consent to amputation of the leg, by the assistant physician, but that the father was absent and the mother not found for several hours thereafter, and that, when notified, she protested against operation without the assent, of her husband who did not return until 9 o'clock P. M., and who, upon his return, refused to permit the assistant physician to perform the operation, it is error to instruct the jury unqualifiedly that it was the duty of the assistant physician promptly to notify the parents or grand-parents of such necessity, the grandmother who was at the hospital not being shown to have had any authority to assent to the amputation, and it not being known to the physician, that the boy resided with his grandparents. (p. 579).

4. Same Facts Held Not to Show Negligence on the Part of Nurse.

A nurse left in charge of a patient suffering from a compound comminuted fracture of the leg, by the operating surgeon, after the bones have been set and wired and the leg enclosed in a plaster of paris cast, with instructions to watch the patient carefully, during the temporary absence of such physician, and, in case of swelling, to cut the cast, and, if necessary, call an assistant physician on the staff of the hospital in which the patient is, both physicians being on that staff, is not negligent in awaiting the coming of the assistant within two or three hours, on his regular tour of the hospital and visitation of patients, after having cut the cast, resorted to appropriate treatment, on discovery of unfavorable symptoms, and vainly endeavored to communicate with him by telephone, it being within her province to determine the necessity of his attendance, in point of time, and the jury cannot properly be instructed, in such case, to find for the plaintiff, on the theory of negligence on the part of the nurse, in failing to call the physician at once, by messenger. (p. 581).

5. Same Facts Held Not to Show Negligence in Failing to Discover Gangrene Sooner.

If, on discovery of indications of lack of sufficient circulation in a leg so injured, dressed and treated, on the morning of the second day, the cast is cut at 8 o'clock, A. M., external heat applied to stimulate circulation, the bandages cut and the leg exposed and examined by the assistant physician, at 10:30 o'clock A. M. and the treatment continued and gangrene discovered at 1 or 2 o'clock P. M., failure of said physician to completely remove the cast and bandages for the purposes of inspection, count the pulse and note it, take the patent's temperature, make inquiry of the nurses, as to his condition during the preceding night, and read medical books, does not justify the giving of instructions submitting hypotheses of negligence in failing to discover necessity of amputation on the morning of that day, since such facts and circumstances do not constitute appreciable evidence of such negligence. (p. 583).

6. Trial In Malpractice Action for Not Sooner Amputating a Gangrenous Leg, An Instruction Ignoring Evidence of Delay Caused by Patient's Parents is Erroneous.

If, in such case, there is evidence tending to prove that amputation at or slightly above the knee would have sufficed, if effected immediately after discovery of gangrene, and that delay necessitated amputation at the hip, instructions to find for the plaintiff, upon the theory of negligence in delay of amputation, hypothetically given, but ignoring evidence tending to prove unwillingness of the parents of the patient, a young boy, to permit amputation by the assistant physician, the only competent person then present, that had right to perform the operation, under the rules of the hospital, and efforts to find the parents and apprise them of the necessity of amputation, are erroneous. (p. 585).

7. Physician and Surgeon That Surgeon, 34 Hours After Dressing Wound, Temporarily Absented Himself Held Not Abandonment of Patient or Breach of Contract.

Proof that a surgeon, after having properly dressed a wound and found it in apparently good condition twenty-four hours later, temporarily absented himself, on business, leaving the patient in the care of competent nurses and a competent assistant physician and surgeon, constitutes no evidence of abandonment of his patient or breach of his contract, and does not justify an instruction based upon the theory of such abandonment or breach. (p. 585).

8. Trial Instruction on Weight of Testimony of Expert and Nonexpert Witnesses Approved.

Although in may instances the evidence of expert witnesses is entitled to much greater weight than that of non-experts, the jury are presumably as thoroughly cognizant of the fact as the court, it being one of common knowledge, wherefore there is no impropriety in the giving of an instruction, in a case in which the issue is largely dependent upon expert testmony, advising the jury to consider it and all of the other evidence and give it such weight as they think it is entitled to, and, further, that its value depends upon the circumstances of each case, to be ascertained by them. (p. 586).

9. New Trial Evidence Held to Warrant Setting Aside Verdict for Plaintiff.

Under the facts and circumstances here indicated, it is the duty of the trial court, upon request, to give an instruction directing the jury to find for the defendants, and, failing so to do, to sustain a motion to set aside a verdict found in favor of the plaintiff, (p. 587).

10. Trial Court Need Not Repeat Instructions. A trial court is under no duty to repeat its instructions to the jury. (p. 588).

11. Same-Refusing a Binding Instruction Which Would Base Verdict Upon an Inclusive Fact is Not Error.

There is no error in the refusal of a binding instruction which, if given, would make the verdict turn upon an inconclusive fact, if found under submission of an issue as to it. (p. 588).

12. Witnesses May Not Testify as to Matters Beyond Personal Knowledge.

A witness is not entitled to testify as to matters of which he has no personal knowledge. (p. 588).

13. Appeal and Error Party May Not Complain of Answer Responsive to His Own Question on Cross-Examination.

A party cannot complain of admission of an answer responsive to a question propounded to a witness, by himself, on cross-examination. (p. 588).

14. Physicians and Surgeons On Issue of Delay in Operation it is Permissible to Show That Hospital Rules Forbade Outside Physicians Operating Therein.

Upon an issue as to injury by delay in performance of a surgical operation in a private hospital, when a physician not connected with it might have operated promptly, it is permissible to prove that a rule of the institution forbade operation therein by surgeons not connected with it. (p. 588).

15. Evidence On Second Trial Preserved Testimony of Witness at First Trial is Admissible on Proof that he Has Since Left the State.

In a second trial of a civil case, the preserved testimony of a witness in the first trial is admissible on proof that he has since left the state and his attendance cannot conveniently be...

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  • Torrence v. Kusminsky
    • United States
    • West Virginia Supreme Court
    • July 29, 1991
    ... ... complain of admission of an answer responsive to a question propounded to a witness, by himself, on cross-examination." Syllabus Point 13, Browning v. Hoffman, 90 W.Va. 568, 111 S.E. 492 (1922) ...         Rudolph L. di Trapano, Melissa M. Hambrick, Lonnie C. Simmons, Di Trapano & ... ...
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    ... ... Hobson, 114 W.Va. 236, 71 S.E. 745; Drake v. Clay Hardware and Supply Company, 110 W.Va. 63, 157 S.E. 35; Browning v. Hoffman, 90 W.Va. 568, 111 S.E. 492. The substance of instruction twelve, refused by the court, was incorporated in instruction eleven which, ... ...
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    ...of his personal knowledge when the payments thus recorded were made. State v. Adkins, 106 W.Va. 658, pt. 4 syl., 146 S.E. 732; Browning v. Hoffman, 90 W.Va. 568, pt. 18 syl., 111 S.E. 492; Bank of Greenville v. S. T. Lowry and Company, 81 W.Va. 578, pt. 3 syl., 94 S.E. 985; Hubbard v. Equit......
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    ... ... To the extent that Browning v. Hoffman, 90 W.Va. 568, 111 S.E. 492 (1922) and its progeny are inconsistent herewith, it is modified ...         Gerald R. Lacy, Henry ... ...
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