Christie v. Callahan

• Decision Date: 23 December 1941
• Docket Number: No. 7749.,7749.
• Citation: 124 F.2d 825
• Parties: CHRISTIE et al. v. CALLAHAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

124 F.2d 825 (1941)

CHRISTIE et al. v. CALLAHAN.

No. 7749.

United States Court of Appeals for the District of Columbia.

Decided December 23, 1941.

Mr. H. Mason Welch, of Washington, D. C., with whom Messrs. John R. Daily and J. Harry Welch, both of Washington, D. C., appeared on the brief submitted for appellant.

Mr. C. Booker Powell, of Washington, D. C., entered an appearance for appellant.

Messrs. Henry I. Quinn and Raymond S. Norris, both of Washington, D. C., submitted for appellee.

Before GRONER, Chief Justice, and EDGERTON and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

The only question is whether the evidence was sufficient to sustain the verdict and judgment in plaintiff's favor.¹ The suit was for malpractice. Defendants are physicians, specializing in X-ray work. They treated plaintiff for removal of a pilonidal cyst. He claims they gave him an overdose of X rays which caused him injury.

The question arises in two phases, causation and negligence. Our function is not to weigh the evidence factually as the jury does. It is to decide whether plaintiff's case, as made, was strong enough for us to allow the jury to consider it. To do this we must apply some standard. But we cannot weigh plaintiff's case against defendants'. Less than preponderance is sufficient. How much less is hard to state abstractly. Commonly the case weighed, to stand, is required to be substantial,² more than a scintilla,³ such as a reasonable man might believe.⁴ All these are just different ways of saying that less than preponderance is required, but the evidence should not be so thin that it would be dangerous for the jury to consider it.

The danger to be guarded against is a too obvious and gross miscarriage of justice, a departure too far from established lines of liability. Facts are primarily within the jury's function. Hence it must be given wide latitude, or trial by jury becomes trial by court. But the jury is not absolute in the realm of fact. Like judges, jurors have weaknesses of emotion and judgment. Unlike judges, they seldom have a background of decision experience against which to check them. Our tradition supplies this through judicial controls. Exclusion of evidence is one. When one side's case is thin, determining its "legal sufficiency" is another. This really means weighing it factually, not for conviction, but for doubt as to the outcome. The verdict sustained therefore represents the jurors' conviction that it is right, and the judge's that it may be right.

The boundary between substance and shadow is hard to draw. Men, including judges, differ about it, always in concrete cases. What is substance to one may be shadow to another. The line cannot be drawn by magic of word or formula. It is not susceptible of generalization.⁵ It is always relevant to the issues and the evidence in a particular case. Hence, in the end, a kind of intuitive evaluation must be made, that the verdict does not or would not shock the judicial sense of justice.

What may do this varies with circumstances, the nature of the case, respective difficulties of proof, elements of passion or prejudice present, etc. Absent emotional factors sufficient in themselves for reversal, the case attacked must be taken as true, so far as it goes,⁶ and permissible inferences must be drawn in its favor.⁷ Given maximum weight, it must leave doubt in the mind of the judge, though it does not convince him that the verdict was right.⁸

Malpractice is hard to prove. The physician has all of the advantage of position. He is, presumably, an expert. The patient is a layman. The physician knows what is done and what is its significance. The patient may or may not know what is done. He seldom knows its significance. He judges chiefly by results. The physician has the patient in his confidence, disarmed against suspicion. Physicians, like lawyers, are loath to testify a fellow craftsman has been negligent, especially when he is highly reputable in professional character, as are these defendants. In short, the physician has the advantage of knowledge and of proof. This increases when he is a specialist.⁹ What therefore might be slight evidence when there is no such advantage, as in ordinary negligence cases, takes on greater weight in malpractice suits. On the other hand, malpractice is a serious charge. The physician is not an insurer of health.¹⁰ He undertakes only for the standard of skill possessed generally by others practicing in his field,¹¹ and for the care which they would give in similar circumstances.¹² He must have latitude for play of reasonable judgment, and this includes room for not too obvious or gross errors according to the prevailing practice of his craft. Generally the standard must be shown by experts and so must the departure from it.¹³ But there are cases in which the result of medical or surgical treatment, considered in the light of the circumstances attending and following it, may warrant an inference of negligence.¹⁴

With these things in mind, we cast the scales, not for preponderance, but for doubt whether the case should stand.

I. Background of Undisputed Facts.

For several years prior to December, 1935, plaintiff had a pilonidal cyst, which erupted like a boil three or four times a year. Otherwise he was in good health, weighing 187 pounds, and went about his work and other usual pursuits. The cyst was located at the lower end of his spine, over the coccyx. It included the underlying cyst, constituted of hair follicles, a fistula or sinus leading to the surface, and an ulcer or opening in the skin, through which matter discharged. The ulcer was small, about one-fifth of an inch in diameter. The surrounding area was healthy. Late in 1935 a surgeon advised removal. Surgery required hospitalization and interruption of work. With a view to avoiding these plaintiff consulted defendant, Dr. Merritt. He advised X-ray therapy, told plaintiff the effect would be no worse than a bad case of sunburn and would not interrupt his work.

The treatments were given in two series. The first included four given in December, 1935; the second, eleven in February, 1936. The radiation was intended to destroy the hair follicles. Properly administered, it would cause "burn" a little more severe than sunburn, but would not cause necrosis or destruction of tissue.

The treatments were given in a leadlined room. The irradiated area was in one field surrounding the surface ulcer. The size of the area was governed by the portal used, which was a square-shaped "cone," seven centimeters to the side. When the machine was properly adjusted to the patient, he was left alone in the room, because the cumulative effect of radiation upon the physician or attendant would be harmful. The length of treatment was controlled automatically by an electric clock.

After the treatments, plaintiff suffered excruciating pain in the area exposed. It became reddened, like raw beefsteak, with pus running through the middle, out of the sinus. Dr. Merritt prescribed narcotics. Plaintiff required and used them continuously, until January, 1937, to keep at work and secure rest at night. His wife, a nurse, administered them almost daily. Physicians applied ointments and salves. Until July, 1936, plaintiff visited Dr. Merritt's office almost daily, for dressing of the ulcer and relief from pain. The record does not show that he saw him during August.

In September, 1936, plaintiff consulted other physicians Previously, in July, he feared a cancerous condition. The Sunday before Labor Day, apparently without Dr. Merritt's knowledge, he went to Baltimore and consulted Dr. Hebb, a surgeon connected with Johns Hopkins University, who advised a surgical operation. On September 4, plaintiff consulted Dr. Merritt about surgeons. Dr. Merritt approved several names, including that of Dr. White, whom plaintiff consulted on September 9. The latter examined him, took his history, and thereafter treated him but did not operate, because he thought it was not safe to do so. He feared cutting might cause the infection to spread and the wound might not heal. Dr. Collins, his associate, assisted in examining and treating plaintiff. On September 10, Dr. Merritt supplied plaintiff with an X-ray photograph of his condition, taken the previous day for Dr. White's use. On September 22 Drs. White and Collins injected in one side only of the X-rayed area a solution containing alcohol, known as Gabriel's solution. The purpose was solely to relieve pain.

Sometime after the X-ray treatments, the skin and tissues in the center of the irradiated area became badly necrosed, began to slough off, and eventually a hole approximately two inches in diameter developed. Proper X-ray treatment would not have produced the sloughing. Just when this occurred is in dispute and is a crucial issue in the case. Defendants say it did not take place until after the alcoholic solution was injected on September 22. Plaintiff says it occurred before that date, and particularly in the early part of September. The evidence on this is squarely in conflict. But all agree that the condition existed on and after October 5, 1936, when plaintiff returned to defendants' office for the first time after September 10. At that time Dr. Merritt found the cyst in an advanced stage of necrosis and, with scissors, cut out the dead tissue.

Plaintiff continued under the care of Drs. White and Collins until January, 1937. His use of narcotics continued and became excessive. His wife recognized this and the physicians discovered he was procuring prescriptions from several simultaneously. Mrs. Callahan stopped giving the injections. Early in January, 1937, Dr. White found plaintiff in a narcotic stupor at his home. On his recommendation, plaintiff was admitted to Chestnut Lodge Sanatorium, in Maryland, for treatment for drug addiction. He remained three or four weeks. The treatment was successful. He has not used narcotics...