Coombs v. King

• Decision Date: 14 December 1910
• Citation: 107 Me. 376,78 A. 468
• Parties: COOMBS v. KING.
• Court: Maine Supreme Court

78 A. 468

107 Me. 376

COOMBS

v. KING.

Supreme Judicial Court of Maine.

Dec. 14, 1910.

Syllabus by the Court.

Exceptions from Supreme Judicial Court, Cumberland County.

Action by Lillian R. Coombs against Alfred King. Verdict for plaintiff, and defendant moves for a new trial, and files exceptions. Overruled.

Action on the case to recover damages for personal injuries suffered by the plaintiff through the use of an X-ray machine prescribed by the defendant. Plea, the general issue. Verdict for plaintiff for $3,500. The defendant filed a general motion for a new trial, and also excepted to certain rulings and refusals to give certain requested instructions.

The case is stated in the opinion.

Argued before SAVAGE, SPEAR, CORNISH, and KING, JJ.

Newell & Skelton, for plaintiff.

Wilford G. Chapman, for defendant.

SAVAGE, J. This is an action on the case against a physician for malpractice. The verdict was for the plaintiff. The case comes up on the defendant's motion for a new trial and exceptions. We will first, as briefly as we may, state our conclusion under the motion.

In 1901 the plaintiff was treated by the defendant for what she terms "scrofulous glands of the neck," and what the defendant says were enlarged "lymphatic nodes or glands." They were on both sides of the neck. The defendant cut them out. In 1903 bunches again appeared on the neck, one on the right side under the chin, and the other the plaintiff says on the right side, and the defendant says on the left side. The defendant diagnosed the trouble as being possibly Hodgkin's disease, and advised X-ray treatment. It turned out not to be Hodgkin's disease, but that is immaterial, because it is not questioned that X-ray treatment was proper for the real trouble.

The defendant himself administered the treatment three or four times, and afterwards it was administered by his office girl, as he says, under his direction. It was administered 25 times in all. The plaintiff says it was administered 3 times a week for 15 minutes each time; the defendant says, twice a week, for 10 minutes each time. At each treatment the plaintiff was seated in a chair, her head thrown back, and turned somewhat to the right, so as to expose the neck and under part of the chin. Her face down as low as the lips was protected from the X-rays by a sheet of lead. The tube of the machine was placed somewhat to the left of the patient's neck, and 15 inches distant The left side of the neck, therefore, where the plaintiff says there was no bunch, was nearer to the tube than the affected parts were. An unintended result of this treatment was a very severe and greatly disfiguring X-ray burn on the left side of the plaintiff's neck and lower part of the face, for which she seeks to hold the defendant legally responsible.

The measure of a physician's legal responsibility has been stated many times by this court He contracts with his patient that he has the ordinary skill of members of his profession in like situation, that he will exercise ordinary or reasonable care and diligence in his treatment of the case, and that he will use his best judgment in the application of his skill to the case. Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Cayford v. Wilbur, 86 Me. 414, 29 Atl. 1117; Ramsdell v. Grady, 97 Me. 319, 54 Atl. 763. The physician is not an insurer. He does not warrant favorable results. If he possesses ordinary skill, uses ordinary care, and applies his best judgment, he is not liable even for mistakes in judgment Medical science is not yet, and probably never can be, in many respects an exact certain science. The practitioner cannot be expected to know, or be bound to diagnose correctly, that which is unknowable, as many of our hidden ailments may be.

The rule of liability is not a hard one. It is a reasonable one. And the burden is on the plaintiff to show a malpractice.

In this case it is conceded that the defendant is a physician of great learning and skill. There is no controversy about that. The plaintiff rests her claim to retain her verdict upon the proposition that the defendant failed to use ordinary care, which is reasonable care, and to apply his best judgment, in his treatment of her case. And, while she specifies several particulars, we shall notice only one, namely, want of attention and watchfulness. She claims that the defendant did not give the proper and requisite attention to prevent the burning, and that the burning resulted in consequence.

It appears from the evidence that the X-ray treatment is usually safe, so far as burning is concerned, when properly administered, but that it is a treatment that requires continued care and attention. It is contended by the plaintiff, and we think the jury were warranted by the evidence in finding, that the safety of the treatment as to burning depends upon several elements. Among these is the distance of the tube from the point of exposure, for the shorter the distance, as it seems, the more potent are the rays. Others are the frequency of the application, the length of each treatment, and the strength of the current. It also seems to be agreed that the potency or penetrability of the rays depends in a measure upon the condition of the tube. It seems that there are so-called "hard" or high vacuum tubes, and so-called "soft" or low vacuum tubes, and that a "soft" tube by time or use will gradually become "hard," and that the same tube may become "soft" again. These qualities affect the penetrability of the rays and their power of doing harm by burning. Then, too, is the personal susceptibility of the patient The rays do not affect all persons alike. Some are more susceptible to burning than others. And the degree of this susceptibility is not ascertainable in many cases for many days or even weeks after the treatment is commenced. It should be noticed, too, that the burning effects of the X-ray treatment do not manifest themselves externally at once. Ordinarily they do not for one or two weeks, but the time may be shorter, or it may be much longer. Meanwhile the process may be cumulative, in the sense that each succeeding treatment adds to the effect of the prior ones.

The mere statement of these phases of the X-ray treatment shows clearly that it cannot be administered according to fixed and unvarying rules. All the medical witnesses concur in saying that it is necessary to watch for the manifestations of burning during the entire period of treatment. The treatment should be adjusted to the person and the exigencies of the case. The physician may vary or temporarily...