Cyr v. Giesen

• Decision Date: 13 October 1954
• Parties: Herman CYR, Pro ami, v. Joseph H. GIESEN. Leon CYR v. Joseph H. GIESEN.
• Court: Maine Supreme Court

Page 316

108 A.2d 316

150 Me. 248

Herman CYR, Pro ami, v. Joseph H. GIESEN.

Leon CYR v. Joseph H. GIESEN.

Supreme Judicial Court of Maine.

Oct. 13, 1954.

Jerome G. Daviau, Waterville, for plaintiff.

Locke, Campbell, Reid & Hebert, Augusta, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER and TAPLEY, JJ.

TAPLEY, Justice.

On exceptions to the granting of a nonsuit in each case.

Herman Cyr, a young man of nineteen years of age, brought an action against the defendant, Joseph H. Giesen, a physician, alleging negligence, and the father, Leon Cyr, brought his action for expenses. The cases were tried together at the October Term, A. D. 1953 of the Superior Court for the County of Kennebec and State of Maine before a jury. Consideration is given to the case of Herman Cyr because upon the determination of his case rests that of his father, Leon Cyr. Plaintiff has the burden of providing first that the defendant was negligent and, second, that his negligence was the proximate cause of the injury. If he fails in his proof to maintain either of these propositions, there is no question for jury determination.

Herman Cyr sustained a trans-cervical fracture of the neck of the left femur (thigh bone) on the twenty-third day of February, A. D. 1949. Immediately following the injury he was taken to the hospital where he was attended by one Dr. Ovide Pomerleau who called in Dr. Joseph H. Giesen, the defendant. Dr. Giesen then took charge of the case. Dr. Giesen on February 25, 1949 performed surgery, using the Smith-Peterson nail technique. The plaintiff remained in the hospital for a period of fifteen days and then was discharged from the hospital. A month later he returned to Dr. Giesen who took x-rays. In June, 1949 x-rays were again taken by the defendant and on the twenty-first day of June, A. D. 1949 the plaintiff went back to work and continued to work without interuption until July 31, 1951. In May of 1950 pain developed in plaintiff's left hip, lasting for three or four months and then disappeared. The pain appeared again several months later. The facts concerning these pains were not brought to the attention of the defendant until August, 1951 when the plaintiff went to the defendant and submitted to surgery, whereby the Smith- Peterson nail was removed. This operative procedure occurred on August 10, 1951 and the plaintiff was discharged from the hospital August 28, 1951. A cast was applied to plaintiff's left leg at that time which he wore for 8 1/2 months, during which time defendant caused x-rays to be taken every two months. Defendant treated plaintiff during this period. X-rays taken July 31, 1951 indicate early evidence of aseptic necrosis of the left femoral head.

A summary of plaintiff's allegations is as follows:

1. Defendant failed to inform the plaintiff of all the advantages and disadvantages of treating the fractured hip with a Smith-Peterson nail and that the defendant failed to recognize the limitations for perfect immobilization in the use of the Smith-Peterson nail from the reading of the x-ray.

2. Defendant failed to use his best judgment in the use of the Smith-Peterson nail; to use the latest approved method and technique; to bring about the proper type of apposition of the bone fragments in the reduction of the fractures; to take proper steps that were available to him by not resorting to bone pegging, osteotomy or to the drilling of holes in the femoral neck for the purpose of promoting blood circulation.

3. Defendant failed in his post operative care in not taking sufficient x-rays in order to acquaint himself with the progress or lack of progress of the union of the fractured femur and of any necrosis or ankylose condition that might have developed.

The defendant filed a plea of general issue with a brief statement alleging as special metter of defense that he was confronted with a very rare and difficult fracture; that the surgical technique which he used was proper in the light of modern orthopedic surgery; that proper union and a completely healed fracture was procured and that the diseased condition of the head of the femur was not caused by any violation of proper treatment on defendant's part.

Counsel for plaintiff concedes that the surgery as performed by the defendant in the reduction of the fracture was proper but maintains his complaint as to alleged negligent post operative care on the part of the defendant.

The record discloses that the plaintiff presented as his evidence the testimony of three witnesses, being himself, Dr. Paul J. Gephart, an osteopathic physician, and Dr. A. Leo Brett, an orthopedic surgeon. In addition to the testimony of these witnesses, there appears exhibits in the nature of hospital records, x-rays and medical reports.

The testimony of the plaintiff in so far as the medical aspect of this case is concerned is not of any probative force excepting as to those subjective symptoms that may have been present. This case must be analyzed entirely from the standpoint of the medical testimony as given by the doctors and evidenced by the exhibits.

The medical facts in this case are such that they come within the realm of expert testimony and must be considered on that basis.

The recognized and accepted rule is that expert evidence is essential to sustain an action for malpractice against a physician or surgeon.

70 C.J.S., Physicians and Surgeons, § 62, page 1006:

'Professional testimony alone should be looked to for matters of fact or opinion peculiarly within the learning and experience of professional witnesses. Thus, where the exercise of proper skill or care on the part of a physician or surgeon is in issue, expert medical testimony is ordinarily essential. Accordingly, expert testimony is ordinarily required to establish the prevailing standard of skill and learning in the locality, and expert testimony is required to establish usual or proper practice in medical treatment, the propriety of particular conduct of the practitioner, and want of professional skill; and such testimony, although not conclusive in the sense that it must be accepted as true, is conclusive as against that of lay witnesses where the matter in issue is within the knowledge of experts only, and not within the common knowledge of laymen.'

The exception to the rule is that under some circumstances where the negligence and harmful results are sufficiently obvious as to lie within common knowledge, a verdict may be supported without expert testimony.

The case under consideration concerns such technical and involved medical procedure that it rules out any possibility of understanding on the part of a layman as to its medical nature and it is therefore self evident that this is not a case falling within the exception of the general rule relating to expert medical testimony in malpractice cases.

We start with the premise that the defendant performed the operation in a proper manner. This fact is not only disclosed by the evidence but also admitted by the plaintiff's counsel. It is also evident that following the insertion of the Smith-Peterson nail nature progressed in a normal way, bringing about a proper union of the fracture line. The plaintiff then returned to his employment which he continued without interruption for a little more than two years, during which time the defendant was not consulted or advised of any trouble that the plaintiff may have been experiencing as a result of the fracture.

In considering the medical evidence, we must look to the testimony of Dr. Paul J. Gephart, an osteopathic physician who was testifying in the capacity of a specialist in x-ray, and to that testimony of Dr. A. Leo Brett, a recognized authority on orthopedic surgery.

The apparent purpose of the testimony of Dr. Gephart was to show from the x-rays the development of asceptic necrosis and that it could have been either prevented or its progress retarded if the defendant had followed post-operative conditions by medium of x-ray. Testimony of Dr. Gephart appears in the record relative to the presence of necrosis of the head of the femur in June, 1950, some fifteen months after the operation.

'Q. As long as you have the x-ray up--one other thing, Dr. Gephart, in regard to it--this being #16 with #13 in parenthesis, that is, #13 on the white paper, that is the 1950 x-ray which you have just described, in June. Do you bear...