Challis v. Lake

• Decision Date: 07 November 1901
• Citation: 51 A. 260,71 N.H. 90
• Parties: CHALLIS v. LAKE (two cases).
• Court: New Hampshire Supreme Court

51 A. 260

71 N.H. 90

CHALLIS

v. LAKE (two cases).

Supreme Court of New Hampshire. Rockingham.

Nov. 7, 1901.

Exceptions from Rockingham county.

Consolidated actions by Junietta Challis and Henry E. Challis against Elmer E. Lake. Verdict for plaintiffs, and cause transferred on defendant's exceptions. Exceptions overruled, and judgment on verdict.

Case for personal injuries to Junietta Challis caused by the defendant's lack of skill and by his negligence. By agreement, the two actions were tried together by a jury. Verdict for the plaintiffs, who are husband and wife. The defendant is a physician. The plaintiffs complain that when their child was born the defendant was unskillful and negligent in his treatment of Mrs. Challis. She was badly torn, and the question was how this wound should have been treated. There was evidence that the child was born May 23, 1899; that the mother was so badly torn that when the wound was sewed up, in 1900, it required from 12 to 15 stitches; that the defendant attended her regularly for six or seven weeks after the child was born, his last visit being some time in July, at which time she was about the house; that he saw her again in three or four months after her child was born, when she was doing her work, and again before February 5, 1900. The plaintiffs were permitted, subject to the defendant's exception, to ask Dr. Galvin, an expert, the following question: "In the case, doctor, of a physician and surgeon attending a woman at childbirth, and there is a laceration of the perineum that required twelve or fifteen stitches to sew up a few months afterward, and he attends her six weeks, and then she is up and able to be around some, and then he sees her again in about three months from the time of the birth of the child, what should he reasonably have done for that woman in that condition; no stitches having been taken to cure the laceration?" In the cross-examination of the defendant, the plaintiff was allowed to ask him, subject to exception, if he had a license when he treated the plaintiff. The jury were instructed at the time that they could consider the evidence on the question of his skill, and not on the question of his negligence. The exception related to the admission of the evidence for any purpose, and not to the instructions limiting it. In respect of the treatment of the wound, the defendant asked an expert witness: "Then, if he failed to sew it up, should you say it did or did not indicate negligence on his part?" The question was excluded, and he excepted. The defendant asked two women, who testified that they were accustomed to nurse in cases of childbirth: "In what way does his [Dr. Lake's] treatment differ from the treatment of other physicians?" The question was excluded, and he excepted. These women had nursed in cases where Dr. Lake and where other physicians were in attendance.

The defendant requested the following instructions, which were refused, excepting as included in the instructions given, and he excepted: "(1) If the advisability of adopting a particular method of treatment in cases like the plaintiff's is a question as to which there is a difference of judgment among members of the profession, the jury are not to consider the relative merits of the two systems, but the defendant was at liberty to act according to his own opinion. (2) If the evidence fails to disclose open, visible connection between the negligence alleged and injury complained of, or if the facts are equally consistent with theories that would charge and discbarge the defendant, this action cannot be maintained." On this question the jury were instructed as follows: "The law also imposes upon the physician, for the benefit of patients, the duty of using ordinary care in the application of knowledge and experience to the treatment of patients. Ordinary care is the care men of average prudence would use under similar circumstances. In deciding what would be ordinary care in a particular case, it is necessary to consider the circumstances of that case; for you can readily see that what would be ordinary care in treating a case of chicken-pox might not be such care in treating a case of smallpox, and what might be ordinary care in amputating a person's finger might not be such care in removing his vermiform appendix. To decide whether or not the defendant was negligent in treating Mrs. Challis, you can ask yourselves whether or not he did what the average physician would have done. If he did not do this, he was negligent. This duty of using ordinary care does not make the physician an insurer of the lives or health of his patients, nor does it make him a guarantor for the patient's recovery. If he does in any particular case what men of average prudence would have done under the same circumstances, he is without fault, regardless of whether the patient does or does not recover. The fact that the patient does not recover is not evidence of the physician's unskillfulness or negligence. The mere fact that the defendant was unskillful or negligent, or both, will not entitle the plaintiffs to recover, unless it also appears that his unskillfulness or negligence, or both, contributed to cause Mrs. Challis' condition. If her condition would have been the same if she had been carefully treated by a skillful physician, they cannot recover; for a person cannot be heard to complain of another's fault unless he shows that he has been injured by it. For the purposes of this case, a wrong is the cause of such results, and such only, as would not have occurred but for that wrong. So, if you find that the defendant was unskillful or negligent, or both, in order to determine whether any part of Mrs. Challis' condition is due to the defendant's fault, you can ask yourselves whether or not the plaintiffs have suffered any loss of time or money, or have endured any pain, which they would not have suffered or endured if the defendant had been skillful and careful." The defendant also requested the following instruction in the question of damages: "The defendant is not liable for consequences, except in so far as they are consequences which an ordinary, reasonable man would have expected to follow from his conduct." This was refused, except as included in the following, and he excepted: "You will give the plaintiffs, as damages, so much money, and no more, as will compensate them for all loss that the evidence shows you the plaintiffs have suffered as the direct and natural result of the defendant's fault. This will Include payment for all loss of time and for suffering that was caused by the defendant's fault, but not for the loss of time and the suffering which were the result of her confinement."

Page & Bartlett, for plaintiffs.

Arthur O. Fuller, for defendant.

WALKER, J. 1. The hypothetical Question addressed to the expert, Dr....