Coleman v. McCarthy
| Decision Date | 03 May 1933 |
| Docket Number | No. 7219.,7219. |
| Citation | 165 A. 900 |
| Parties | COLEMAN v. McCARTHY. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; G. Frederick Frost, Judge.
Action by Kevin Coleman, p. a., against James M. McCarthy, Jr. Verdict for defendant, and plaintiff brings exceptions.
Exceptions overruled, and case remitted for entry of judgment on verdict.
Eugene L. Jalbert, of Woonsocket, for plaintiff.
Hinckley, Allen, Tillinghast, Phillips & Wheeler, S. Everett Wilkins, Jr., and Mason B. Merchant, all of Providence, for defendant.
This action of trespass on the case was brought to recover damages for improper treatment by defendant, a physician, of accidental injuries to the plaintiff, a minor, who sues by his next friend. The case was tried in the superior court before a jury and a verdict was returned for the defendant. The trial justice denied plaintiff's motion for a new trial and the case is here on plaintiff's exceptions (1) to the denial of his motion for a new trial; (2) to a part of the charge to the jury.
The plaintiff, on September 1, 1928, then a boy between six and seven years of age, sustained injuries when he fell off a fence. Defendant was called and found a fracture of the ulna of the left arm. He reduced the fracture and placed the arm in splints. There is no complaint that the fracture of the ulna was not properly treated. Plaintiff's case rests on the contention that the defendant failed to discover a dislocation of the radius either at the time of the accident or at a reasonable time thereafter.
The testimony was to the effect that defendant, after he reduced the fracture of the ulna, sent the plaintiff to a clinic for the purpose of having an X-ray taken of the injured arm. As the picture did not show all of the arm between the wrist and the elbow, defendant caused another to be taken which showed the forearm as far as the elbow. Neither picture revealed any injury to the radius. When the splints were removed, defendant discovered a condition which caused him to have another X-ray taken and this picture revealed a fracture of the radius. A specialist in orthopedic surgery in Boston was consulted and an operation was performed by this specialist. The condition of the arm improved after the operation but at the time of the trial there was considerable limitation of motion in the elbow.
The medical testimony was that the defendant did everything under the circumstances that could be expected of an ordinary doctor practicing in the locality. In Barker v. Lane, 23 R. I. 225, 49 A. 963, the rule was laid down that the question as to whether the physician used proper skill and diligence in treating an injury must be determined by the testimony of experts in medicine and surgery.
Counsel for plaintiff contends that this rule while it was correct when it was announced should now be modified, and in support of this contention makes the startling statement—which he states is based on his experience in attempting to obtain expert medical testimony to support the charge of negligence on the part of a defendant—that unless the rule is modified "there is no possible way for any one who suffers injury at the hands of a negligent physician to recover his just damages." This statement, if true, is a matter of grave concern to those charged with the administration of justice. We are not convinced, notwithstanding the experience of plaintiff's counsel, that the ethical standards of the medical profession countenance a course so subversive of justice and so opposed to the duty which the profession owes to the public.
We are not informed how far afield plaintiff's counsel went in his search for medical testimony. There might be a natural reluctance on the part of physicians practicing in the same locality to appear as experts against a fellow practitioner. We cannot believe that there are not in this state many well-qualified physicians who would be willing to assist by their testimony a person who was a victim of malpractice.
Plaintiff's counsel might have had recourse to section 18, chapter 342, Gen. Laws 1923, where it is provided that: "Any justice of the superior court may, in any cause, civil or criminal, on motion of any party therein, at any time before the trial thereof, appoint one or more disinterested skilled persons, whether they be residents or non-residents, to serve as expert witnesses therein."
The only medical testimony, besides the...
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Papke v. Harbert
...a reasonably prudent doctor in like circumstances." Id. (citing Barker v. Lane, 23 R.I. 224, 49 A. 963 (R.I.1901); Coleman v. McCarthy, 53 R.I. 266, 165 A. 900, 902 (R.I.1933); see also Ouellette, 391 N.W.2d at 816). However, the court expressly held that use of phrases such as "good faith,......
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Wilkinson v. Vesey
...care is so obvious as to be within the layman's common knowledge. Nolan v. Kechijian, 75 R.I. 165, 64 A.2d 866 (1949); Coleman v. McCarthy, 53 R.I. 266, 165 A. 900 (1933); Bigney v. Fisher,26 R.I. 402, 59 A. 72 (1904); Barker v. Lane, 23 R.I. 224, 49 A. 936 (1901). The physician's standard ......
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DiFranco v. Klein
...methods of treatment and not be held liable. Barker v. Lane, 23 R.I. 224, 225, 49 A. 963, 963 (1901); see Coleman v. McCarthy, 53 R.I. 266, 269, 165 A. 900, 902 (1933). This has become known as the "medical judgment" or "error in judgment" doctrine. Since Coleman, though, no case before thi......
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Dunning v. Kerzner
...Richardson v. Fuchs, 523 A.2d 445, 448 (R.I.1987); Nolan v. Kechijian, 75 R.I. 165, 64 A.2d 866, 868 (1949). See Coleman v. McCarthy, 53 R.I. 266, 165 A. 900 (1933); Bigney v. Fisher, 26 R.I. 402, 59 A. 72 Without expert testimony to establish the conduct required of a physician in the circ......