Domina v. Pratt

• Decision Date: 07 May 1940
• Parties: ARNOLD DOMINA, b/n/f CLYDE DOMINA v. G.O. PRATT
• Court: Vermont Supreme Court

13 A.2d 198

111 Vt. 166

ARNOLD DOMINA, b/n/f CLYDE DOMINA v. G.O. PRATT

Supreme Court of Vermont

May 7, 1940

February Term, 1940.

Malpractice.---1. Physician Not Chargeable with Highest Skill.---2. Physician Responsible for Ordinary Skill.---3. Performance Not Determined by Result.---4. Physician Not Liable for Error of Judgment Unless Gross.---5. Physician Not Held to Infallibility.---6. Standard of Care of Physician.---7. Physician's Duty Extends to Diagnosis and Treatment.---8. Physician's Negligence in Improper Diagnosis or Remedy.---9. Physician's Failure in Diagnosis.---10. Physician's Diagnosis Not Judged by Developments.---11. Physician's Failure in Care and Skill Shown by Expert Testimony.---12. View of Evidence on Motion for Directed Verdict.---13. Denial of Directed Verdict if Substantial Evidence.---14. Contradictions for Jury.---15. Denial of Directed Verdict in Malpractice.---16. Nothing for Review if Neither Exception nor Answer.---17. Interrogatory to Expert Re Standard in Malpractice Case.---18. Expert's Statement of General Rule Harmless.---19. Request for Charge that Error in Judgment Must be Gross.---20. Withdrawal of Improper Argument.---21. Examination of Transcript to Sustain Close Jail Certificate.---22. Award of Close Jail Certificate Discretionary.---23. Separate Examination for Close Jail Certificate---P. L. 2195.---24. Separate Examination Presumed.---25. Presumption of Natural Consequences of Act.---26. Close Jail Certificate in Malpractice Case.

1. A physician is not chargeable with the highest degree of skill obtainable in his profession or even that shown by those whose location affords them unusual opportunities for practice.

2. A physician is held responsible for the possession of ordinary skill in matters pertaining to his calling and to ordinary care in the exercise thereof.

3. The result of treatment by a physician is not determinative of the performance of his duty to exercise ordinary skill.

4. A physician is not held for an error of judgment in his practice unless it is so gross as to be inconsistent with due care.

5. A physician is not held to infallibility in the practice of his profession.

6. The standard of care to which a practicing physician must conform is the degree of care and skill that is ordinarily possessed and exercised in like cases by physicians in the same general line of practice who follow their profession in the same general neighborhood.

7. The standard of care with which a physician is chargeable in the practice of his profession extends to the diagnosis of his patients' maladies as well as the treatment of their diseases or injuries.

8. A physician may be negligent in the practice of his profession in either a failure properly to diagnose a case or a failure to apply a proper remedy.

9. A physician is bound to use ordinary standards of care in diagnosis and his failure to do so upon a reasonable opportunity for examination will amount to actionable negligence.

10. A physician's examination and diagnosis of a patient must be considered by what he did and saw or what he should have done and seen at the time and not by later developments.

11. The lack of requisite care and skill to charge a practicing physician with negligence in failure to exercise the same must be shown by expert medical testimony.

12. The consideration of a defendant's motion for a directed verdict must view the evidence in the light most favorable to the plaintiff.

13. If there is any substantial evidence fairly and reasonably tending to support the plaintiff's claims an issue is made for the jury and a defendant's motion for a directed verdict must be denied.

14. Contradictions in testimony are for the jury to weigh.

15. In a malpractice action it is proper to deny the defendant's motion for a directed verdict where the record discloses evidence fairly and reasonably tending to support the claim that the defendant failed to exercise the requisite degree of care and skill in informing himself as to his patient's condition and in pursuing a course of treatment improper and harmful to the true condition of the patient.

16. When the record discloses neither an exception nor an answer to an inquiry withdrawn after objection, nothing is presented for review.

17. In a malpractice case where one of the claims was for erroneous diagnosis and treatment, an inquiry of a qualified expert as to whether the standard treatment in the vicinity following a diagnosis of either diabetic coma or insulin shock would be glucose or carbohydrate treatment was proper as an interrogation upon the material point as to whether the treatment was in accord with the required standard of care and skill.

18. An inquiry of an expert witness as to how he would treat a situation to which he replied that he could only give the general rule does not appear to affect injuriously the rights of the defendant in a malpractice case.

19. A request to charge that an error in judgment does not amount to malpractice unless so gross as to be inconsistent with due care judged under the standard of care to which the physician must measure up should be complied with in a case where there is conflicting evidence as to a patient's symptoms and conditions and the charge as given covered only the general principles of a physician's liability.

20. Improper argument of counsel immediately withdrawn with the request that it be disregarded and which the court instructed the jury not to consider creates no error.

21. When the transcript and exhibits are made part of a bill of exceptions and controlling, they may be examined in determining whether an oral finding that the cause of action arose from the willful and malicious act of the defendant and that he ought to be confined in close jail should be upheld.

22. The award of a close jail certificate is so far a question of fact and matter of discretion that the finding is not revisable if there is any evidence to support it.

23. The statute authorizing issuance of a close jail certificate contemplates a separate and independent examination of the evidence as a basis for the adjudication, P. L. 2195.

24. The contrary not appearing, it will be assumed that a trial court made a separate and independent examination of the evidence with impartial patience and attention before determining that a close jail certificate should issue.

25. Every sane person is presumed to intend the natural consequences of his act.

26. A trial court makes no error in making the necessary adjudication for a close jail certificate in a malpractice case in which there is evidence tending to show that the defendant omitted to make reasonable tests and that he omitted to administer proper remedies but followed an improper course of conduct to the plaintiff's injury.

ACTION OF TORT for negligence for alleged malpractice. Trial by jury, April Term, 1939, Franklin County Court, Hughes, J presiding. Verdict and judgment for the plaintiff and finding made that close jail certificate should issue. Exceptions by the defendant. The opinion states the case.

Judgment reversed and cause remanded.

Austin & Edmunds for the defendant.

Shangraw & Brown and M. H. Alexander for the plaintiff.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

Although a physician is not required to have the highest degree of skill obtainable in his profession, or even that shown by those whose location affords them unusual opportunities for practice, he is held responsible for the possession of ordinary skill and knowledge in matters pertaining to his calling and to ordinary care in the exercise thereof. Sheldon v. Wright, 80 Vt. 298, 314, 67 A. 807. The result of his treatment is not determinative of the performance of his obligation ( Parker v. Bowen, 98 Vt. 115, 120, 126 A. 522; Rann v. Twitchell, 82 Vt. 79, 84, 71 A. 1045, 20 L.R.A. (N.S.) 1030; Wilkins' Admr. v. Brock, 81 Vt. 332, 343, 70 A. 572; Sheldon v. Wright, supra, p. 315), nor is he to be held liable for an error of judgment unless it is so gross as to be inconsistent with due care (Wilkins' Admr. v. Brock, supra, p. 345); and he is not required to be infallible. Hathorn v. Richmond, 48 Vt. 557, 562, 563. The standard to which he must conform is the degree of care and skill that is ordinarily possessed and exercised in like cases by physicians in the same general line of practice who follow their profession in the same general neighborhood. Parker v. Bowen, supra, pp. 119, 120; Willard v. Norcross, 86 Vt. 426, 430, 85 A. 904; Id., 81 Vt. 293, 298, 69 A. 942; Sheldon v. Wright, supra; Mullin v. Flanders, 73 Vt. 95, 99, 50 A. 813.

This standard applies not only to the physician's treatment of the patient's disease or injury but as well to his diagnosis of the malady. Negligence may consist in a failure to apply the proper remedy upon a correct determination of the existing physical conditions or it may precede that and result from a failure properly to inform himself of these conditions. Rann v. Twitchell, supra, p 84. A physician is bound to give his patient as careful and thorough an examination as the circumstances permit, using such care and skill and such methods of diagnosis for discovering the nature of the ailment as are required by the rules of good local practice, and if by the exercise of such care and skill, combined with a reasonable opportunity for examination, the patient's true condition could have been discovered, the failure to discover it will amount to actionable negligence. But his conduct in this behalf is to be judged by what he saw and knew, or ought to have seen and known at that time, not by what may have developed or come to light since, and here again he cannot be held...