Coburn v. Moore

• Decision Date: 08 July 1946
• Citation: 68 N.E.2d 5,320 Mass. 116
• Parties: COBURN v. MOORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 116
68 N.E.2d 5

COBURN
v.
MOORE.

Supreme Judicial Court of Massachusetts, Plymouth.

July 8, 1946.

Exceptions from Superior Court, Plymouth County; J. V. Sullivan, Judge.

Action of tort by Harriet M. Coburn administratrix, against George A. Moore to recover damages for defendant's negligent treatment of plaintiff's intestate. The jury returned a verdict for plaintiff on each of two counts and defendant excepted to denial of motions for directed verdicts, to the refusal of two requests for instructions, and to the admission of evidence.

Exceptions sustained and judgment entered for defendant conditionally.

[68 N.E.2d 7]

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and WILKINS, JJ.

J. N. Esdaile, of Boston, for plaintiff.

J. N. Clark, of Boston, for defendant.

RONAN, Justice.

This is an action of tort against a physician. It is alleged in the first count that the defendant negligently treated the plaintiff's intestate for a throat ailment and that because of such negligence the intestate died of pneumonia; and in the second count that the negligent treatment for a throat ailment caused conscious suffering by the intestate. The jury returned a verdict for the plaintiff on each count. The defendant excepted to the denial of motions for directed verdicts, to the refusal of two requests for instructions, and to the admission of evidence.

The following facts could be found by the jury. The intestate, who was the husband of the plaintiff, was suffering from a severe cold on November 24, 1941, and complained of a sore throat on November 26, 1941. He had been using medicine and tablets for a gargle which his wife had procured from a physician, but he had not

[68 N.E.2d 8]

responded to this treatment and another physician was called on November 27, 1941, who sent him to a hospital conducted by the defendant in Brockton. The plaintiff saw him at the hospital on November 28, 1941. He was very ill and cold, and chills, complained of pain in his sides, and was coughing. When she visited him the next day, she noticed that his face was flushed and that he was coughing up a brownish colored sputum. He said that he had pain and was very sick. The plaintiff, who had worked as a practical nurse for ten years, told the floor nurse that her husband had pneumonia. The defendant was familiar with the symptons of pneumonia, which is rather an easy disease to diagnose. If a person has a cough, a previous history of a cold and a pain in his sides, and complains of being cold, the defendant would be suspicious that pneumonia had started; and, if on the next day he discovered a definite dullness on percussion of the chest, an increase in the voice sounds, bronchial or harsh breathing sounds, a flushing of the face, a high temperature and the common symptom of a rusty colored sputum containing dark brown blood, a definite diagnosis of pneumonia could then be made. A hospital record, in the handwriting of the defendant, stated that the lungs of the intestate were clear on November 27, 1941, and on November 30, 1941. According to this record, the intestate on November 30, 1941, was objecting rather violently to treatment and to taking nourishment. The defendant called upoin the welfare authorities of Bridgewater to remove the intestate from the hospital. On the afternoon of November 30, 1941, he was driven in an automobile by a police officer sixty to seventy miles to the Tewksbury State Hospital. An examination at this hospital on the morning of December 1, 1941, disclosed that there was ‘BRONCHOVESICULAR BREATHING AT THE LEFT BAse with coarse rales throughout.’ The examining physician suspected that the intestate had pneumonia. The intestate died on the evening of December 1, 1941.

It was undisputed that the intestate was suffering from Vincent's angina when he was admitted to the defendant's hospital. This disease starts with a laceration of the pharynx in the regions of the tonsils, and as it progresses involves the entire mucous coating of the mouth. The temperature and pulse are increased and the patient becomes very ill. There may be chills and the sputum becomes rusty colored. There was expert evidence that the intestate was suffering from pneumonia while at the defendant's hospital, notwithstanding the testimony of the defendant to the contrary. The evidence was sufficient to support findings that the defendant should have known that the intestate was suffering from pneumonia even if Vincent's angina, a disease from which he was suffering, displayed some symptoms that were also characteristic of pneumonia, and that it was improper medical treatment to order the removal of the intestate from his hospital. The negligence of the defendant was an issue of fact. Chesley v. Durant, 243 Mass. 180, 137 N.E. 301;King v. Belmore, 248 Mass. 108, 142 N.E. 911;Butler v. Layton, 266 Mass. 117, 164 N.E. 920;Boston v. Fountain, 267 Mass. 196, 166 N.E. 736;Zimmerman v. Litvich, 297 Mass. 91, 7 N.E.2d 437.

A hypothetical question was put to an expert witness, called by the plaintiff, seeking his opinion as to whether it was good medical practice for the defendant to order the removal of the intestate, who had certain described symptoms, from Brockton to Tewksbury, a distance of sixty to seventy miles. The defendant objected, and the question was amended by adding that it could also be assumed that he was suffering from Vincent's angina and a skin condition. The defendant again objected and, in answer to an inquiry by the judge, counsel stated that his objection was that the question was based on the assumption that the intestate had penumonia and that the witness was ‘going to be asked to testify it was bad practice to send the man out when . . . [the defendant] testifies that he didn't know that he had pneumonia and had no evidence of it.’ The judge stated that it was for the jury to say whether the intestate had pneumonia. Counsel replied that he then had no objection. Counsel for the plaintiff added to the facts assumed in the

[68 N.E.2d 9]

previous question the further assumption that the defendant knew or ought to have known that the intestate had pneumonia. The defendant objected and saved an exception. The witness answered that it was very bad practice, and in answer to further interrogation stated that his reason was that such a trip would ‘greatly weaken the patient and hasten the end death.’ The judge, we think, reasonably understood that the objection was based solely on the alteration of the hypothetical question by stating an hypothesis that the defendant knew or ought to have known that the intestate had pneumonia. Rothwell v. First National Bank, 286 Mass. 417, 422, 190 N.E. 812;Alfred J. Silberstein, Inc., v. Nash, 298 Mass. 170, 174, 10 N.E.2d 65;Perry v. Manufacturers National Bank, 315 Mass. 653, 660, 54 N.E.2d 173. There was evidence, if believed, that would support these additional assumed facts, and this addition did not make the question an improper one. If the defendant intended to base his objection on grounds other than this addition to the question, he should have then brought them to the attention of the judge. Howard v. Hayward, 10 Metc. 408, 420;Holbrook v. Jackson, 7 Cush. 136, 154;Brown v. Leach, 107 Mass. 364, 368;Morrison v. Holder, 214 Mass. 366, 369, 101 N.E. 1067;Shumaker v. Lucerne-In-Maine Community Association, 275 Mass. 201, 206, 175 N.E. 469. Counsel did not make any contention at that time that the witness was not qualified to testify as to the proper medical practice in Brockton. Knight v. Overman Wheel Co., 174 Mass. 455, 465, 54 N.E. 890. Later, in the direct examination of this witness, the defendant for the first time raised the question that the witness was not familiar with the medical practice in Brockton, and the judge after hearing evidence ruled that the witness was not qualified to express an opinion upon this subject. After that ruling was made it was the duty of the defendant, if he still contended that the admission of the evidence we have discussed was erroneous, to move to strike it out. This he did not do. Morrison v. Holder, 214 Mass. 366, 369, 101 N.E. 1067;Nugent v. Boston Consolidated Gas Co., 238 Mass. 221, 235, 130 N.E. 488;Commonwealth v. Patalano, 254 Mass. 69, 75, 149 N.E. 689.

There was error, however, when the judge, after ruling that the witness was not competent to express an opinion on the prevailing medical practice in Brockton, allowed him to testify that it was not good medical practice in a city of the size of Brockton for a physician to permit a man to be moved sixty to seventy miles if his temperature was...