Carbone v. Warburton

• Court: New Jersey Supreme Court
• Writing for the Court: WILLIAM J. BRENNAN, Jr.
• Citation: Carbone v. Warburton, 11 N.J. 418, 94 A.2d 680 (N.J. 1953)
• Decision Date: 09 February 1953
• Docket Number: No. A--80,A--80
• Parties: CARBONE v. WARBURTON.

Page 418

11 N.J. 418

94 A.2d 680

CARBONE v. WARBURTON.

No. A--80.

Supreme Court of New Jersey.

Argued Jan. 19, 1953.

Decided Feb. 9, 1953.

William P. Braun, Newark, argued the cause for appellant (Frederick C. Vonhof, Newark, on the brief).

Leo Rosenblum, Jersey City, argued the cause for respondent.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

The trial judge ruled that Dr. Sidney A. Jacobson, a licensed New York general practitioner, retired from active practice, was not qualified to testify as plaintiff's medical expert and dismissed this medical malpractice case when plaintiff offered no other expert medical testimony. The Appellate Division reversed, one judge dissenting, 22 N.J.Super. 5, 91 A.2d 518 (1952). Defendant's appeal is here pursuant to Rule 1:2--1(b).

Only a meagre part of the record was supplied on the appeal below, and from what there was the Appellate Division assumed, but mistakenly, that defendant is a general practitioner. Defendant has furnished substantially all of the record in his appendix filed in this court and it discloses that he is in fact a specialist in orthopedic and traumatic surgery and was on emergency duty in that capacity as a member of the orthopedic staff of St. Joseph's Hospital, Paterson, when plaintiff was brought to the hospital on July 21, 1946 suffering from a compound fracture of the lower leg caused by his fall from a horse.

Defendant's deposition was put in evidence on the plaintiff's case and it appears therefrom that he found a 'large compound wound' in plaintiff's leg 'considerably contaminated' 'with debris--leaves, fragments of straw, and so forth--grit.' He recognized the 'chance for considerable contamination' from a fall on 'a bridle path' and 'to prevent incubation of bacteria that you know are contaminating the wound' decided upon an immediate operation 'called by us a 'debridement. " He would not align the fracture until the debridement was completed and he had satisfied himself 'that all soiled tissue, injured tissue and foreign bodies were removed.' He described in detail how the debridement was performed and the manner in which thereafter he aligned the fracture and encased the leg in a cast. He saw plaintiff only once after the operation. Otherwise postoperative care was given by other members of the hospital staff during their duty tours.

After eight days plaintiff went home under the care of his family physician. Two or three days after coming home plaintiff noticed a 'reddish yellowish kind of stain' on the cast which 'seemed to get larger.' On August 29 the family physician sent him to Christ Hospital for X-rays to check on the bone union. The X-rays showed no definite evidence of bone union. An orthopedic surgeon, Dr. Nafash, was consulted. The cast was removed and an operation was performed on the heel bone to insert a wire to put the leg in traction and advance the bone union. Plaintiff was taken out of traction on September 14 and returned home after further X-rays disclosed that there was still 'no evidence of bony union.'

After plaintiff was home some weeks his family physician noticed symptoms which caused him to suspect the existence of tetanus infection in the leg. Plaintiff was sent to the Jersey City Medical Center on October 14. Tests were made resulting in a diagnosis of 'a chronic form of tetanus, accompanying a compound fracture.' The leg was promptly operated upon by orthopedic specialists on the staff of Medical Center. A sinus tract 'connecting the deeper tissues to the external surfaces' was excised. Several pieces of dead bone were removed 'and there was a small piece of straw found in the depth of the wound.'

The negligent acts and omissions charged to the defendant in the pretrial order include his alleged failure 'to remove infectious and other substances from the area of the fracture,' that 'he caused the bone and soft tissue to become infected,' 'failed to administer antitetanus treatments,' 'negligently made irrigation of the fracture.'

Defendant contends that even if error was committed in not permitting Dr. Jacobson to testify, the error was harmless. His brief asks 'how could any physician (that is, testifying as a medical expert), no matter how skilled, determine that the tetanus and other illnesses, which were first diagnosed at the time of the plaintiff's admission to the Jersey City Medical Center, were proximately caused by anything done or omitted by the defendant three months before.' But that is peculiarly a question of medical opinion, and Dr. Jacobson was not permitted to state his opinion of the relation between defendant's handling of the case and the subsequent tetanus infection and accompanying illnesses and their significance to the failure of a union of the broken bone. At the very least there may legitimately be inferred from the evidence that the 'piece of straw' removed from the wound at Medical Center was among the 'fragments of straw' which defendant said were part of the contaminating matter he sought to remove by the debridement. What connection, if any, the 'piece of straw' had with the tetanus infection and the absence of a bone union, and if it had some connection whether defendant was negligent in not removing it, either because he did not follow standard medical procedures in the attempt, or followed the standards improperly, are matters of informed medical opinion. We cannot say what Dr. Jacobson's opinions are on those questions, or even that he has opinions on them, because he was not permitted to say. It is clear, however, that if it was error not to allow him to testify, the record certainly lends no support to the contention that the error was harmless.

Appellant next cites Dean Wigmore's view, 2 Wigmore on Evidence, (3rd ed.1940), sec. 561, p. 641, that the trial court must be left to determine 'absolutely and without review' whether a witness offered as an expert has the special knowledge and experience which renders his opinion of aid in the determination of the professional questions at issue. But New Jersey does not adopt that view. The trial judge's determination may be reviewed and if clearly erroneous may be set aside. See Bosze v. Metropolitan Life Insurance Co., 1 N.J. 5, 61 A.2d 499 (1948); Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 72 A.2d 204 (1950).

We agree with the majority opinion below that the trial court mistakenly exercised its discretion in holding Dr. Jacobson to be incompetent to testify. The fact that the doctor is licensed in New York and is not licensed to practice in Paterson where defendant practices is not a ground of disqualification. The rule followed in some jurisdictions, Sinz v. Owens, 33 Cal.2d 749, 205 P.2d 3, 8 A.L.R.2d 772, that a physician or surgeon is incompetent to testify as to the standards required of the defendant who practices in another community is not followed in this State. In those cases where expert testimony is essential to proof of alleged medical malpractice the testimony may be supplied by physicians 'qualified by their own knowledge and experience in the same profession to know and state whether in the given circumstances of a particular case the physician or surgeon had failed to exercise that degree of knowledge and skill which usually pertains to other members of his profession.' Hull v. Plume, 131 N.J.L. 511, 515, 37 A.2d 53, 55 (E. & A.1944); 1944); Jedel v. Tapper, 181 A. 400, 13 N.J.Misc. 809 (Sup.Ct.1935); Woody v. Keller, 106 N.J.L. 176, 148 A. 624 (E. & A.1930); Lolli v. Gray, 101 N.J.L. 337, 128 A. 256 (E. & A.1925); Smith v. Corrigan, 100 N.J.L. 267, 126 A. 680 (Sup.Ct.1924); Ely v. Wilbur, 49 N.J.L. 685, 10 A. 358, 441 (E. & A.1887). True, mere possession of a license to practice medicine does not without more conclusively establish the physician's competency to testify in a malpractice case. It may be that if the witness is permitted to state his opinion without the party against whom it is offered first demanding additional evidence of his qualifications to have an opinion, the party will not be heard later to complain of his competency to give the opinion. His license to practice at least imports some general competency to testify on all medical subjects. Cf. Castner v. Sliker, 33 N.J.L. 507 (E. & A.1869); Crawford v. American Stores Co., 5 N.J.Misc. 413, 136 A. 715 (Sup.Ct.1927). The usual practice, however, is for the party to challenge the witness' qualifications at the outset, or for the trial court to require that they be developed, in which case the party offering the witness has the burden...