Capron v. Douglass

• Decision Date: 06 October 1908
• Citation: 85 N.E. 827,193 N.Y. 11
• Parties: CAPRON v. DOUGLASS.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 11

85 N.E. 827

CAPRON

v.DOUGLASS.

Court of Appeals of New York.

Oct. 6, 1908.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by D. Dudley Capron against J. Wallace Douglass. From a judgment of the Appellate Division (119 App. Div. 919,105 N. Y. Supp. 1110), affirming a judgment of the court below for plaintiff, defendant appeals. Reversed and new trial ordered.

James Taylor Lewis, for appellant.

Smith M. Lindsley, for respondent.

HAIGHT, J.

This action was brought to recover damages against the defendant, a physician and surgeon, upon the ground that he was chargeable with malpractice in treating a fracture of the tibia and fibula of the plaintiffs leg. Upon the trial evidence was submitted by the plaintiff and his witnesses tending to show that, after the plaintiff received the fracture of the bones of his leg, the defendant was called as a surgeon to attend the same, and that he was negligent in reducing the fracture and in his subsequent care of the patient. After a lapse of several weeks it was discovered that there had been no union of the fractured bones, and the plaintiff was then removed to a hospital in the city of Utica, where an operation was performed by Dr. Glass of that city, aided by Dr. Fred Douglass, one of the hospital's staff of surgeons, after which there was a union of the fractured bones, and a recovery had by the plaintiff, but with the usefulness of the leg somewhat impaired. The contention of the defendant was to the effect that he had properly reduced the fracture, placing the broken bones in apposition, but that he was disappointed in their failure to unite, and that the cause of such failure was one that could not be determined by an external examination of the limb, and was only discovered after the plaintiff had been removed to the hospital and an incision made at the place of the fracture, when it was discovered that some of the muscles of the leg had intervened between the broken ends of the bones, preventing their coming together and forming a union. This condition of the fractured bones was discovered by Dr. Glass at the hospital, who performed the operation, and was testified to by him as a witness for the defendant, without objection by the plaintiff. The defendant then called as a witness Dr. Fred J. Douglass, who assisted Dr. Glass in the operation, but his evidence was excluded upon the objection of the plaintiff's counsel, under section 834 of the Code, and an exception was taken to such exclusion. The trial court charged the jury: ‘If you find that the leg was properly set, the bones placed in apposition at the time of the first operation by the defendant, and you find that muscular fibres prevented union of the tibia, and that the loose fragment found at the place of fracture of the fibula prevented union of that bone, and that such condition could not have been discovered except by the operation at the hospital, requiring extraordinary skill, and find the defendant was not guilty of negligence in failing to discover the condition of nonunion prior to the time when he did discover it, then there is no liability, and the verdict must be for the defendant.’ In this connection the jury was further charged, at the request of the defendant, ‘that if the jury finds from the evidence that the fractured ends of the tibia were separated by tendon, muscle, or tissue, and for that reason could not have been made to unite without incision, and without the removal of the interposed substance, the plaintiff cannot recover for loss or damage resulting from delayed nonunion of such fragments by reason of the presence of such foreign substance, upon the undisputed facts in this case.’ The jury found a verdict for the plaintiff. It will therefore be observed that under the charge of the court the chief question of fact involved was as to whether there were muscular fibres, which intervened between the broken ends of the tibia, which prevented its union, and as to whether such a condition could have been discovered except by the operation, which was made at the hospital, requiring extraordinary skill. It is thus apparent that upon this issue the sustaining of the testimony of Dr. Glass was of importance to the defendant, and had he been permitted to avail himself of the testimony of Dr. Douglass, who assisted Dr. Glass in the operation, the result might have been different. We, consequently, cannot approve of the ruling made upon the ground that the evidence was merely cumulative; for, it being offered upon the trial of the case to sustain the defendant's defense, he had the right to have it considered by the jury.

The serious question presented upon this review calls for a construction of sections 834 and 836 of the Code of Civil Procedure. Section 834 is, so far as material, as follows: ‘A personduly authorized to practice physic or surgery, * * * shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity.’ Section 836, among other things, provides, that the provisions of the section apply to a surgeon, ‘unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. * * * The waivers herein provided for must be made in open court, on the trial of the action, or proceeding, and a paper executed by a party prior to the trial, providing for such waiver shall be insufficient as such a waiver. But the attorneys for the respective parties may, prior to the trial, stipulate for such waiver, and the same shall be sufficient therefor.’ There can be no...