Dye v. Corbin

• Decision Date: 13 March 1906
• Citation: 53 S.E. 147,59 W.Va. 266
• Parties: DYE v. CORBIN.
• Court: West Virginia Supreme Court

53 S.E. 147

59 W.Va. 266

DYE v. CORBIN.

Supreme Court of Appeals of West Virginia.

March 13, 1906

Syllabus by the Court.

A motion to exclude all of the plaintiff's evidence introduced upon the trial of an action should be sustained when such evidence is insufficient to sustain a verdict in favor of the plaintiff, notwithstanding there is a scintilla of evidence supporting the plaintiff's case.

In an action for damages against a physician, for negligence and want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill, resulting in injury to the plaintiff.

A physician is not required to exercise the highest degree of skill and diligence possible, in the treatment of an injury or disease, unless he has by special contract agreed to do so. In the absence of such special contract, he is only required to exercise such reasonable and ordinary skill and diligence as are ordinarily exercised by the members of the profession in good standing, in similar localities and in the same general line of practice, regard being had to the state of medical science at the time.

A physician does not warrant or insure that his treatment will be successful, in the absence of special contract to that effect.

Failure on the part of a physician to effect a cure does not alone establish or raise a presumption of want of skill or negligence on his part.

Where a physician exercises ordinary skill and diligence, keeping within recognized and approved methods, he is not liable for the result of a mere mistake of judgment.

A physician is liable for the result of an error of judgment where such error is so gross as to be inconsistent with that degree of skill which it is the duty of a physician to possess.

Error to Circuit Court, Ritchie County.

Action by T. E. Dye against M. L. Corbin. Judgment for defendant and plaintiff brings error. Affirmed.

Duty & Fidler, for plaintiff in error.

Freer & Robinson, for defendant in error.

COX, J.

On the 14th of January, 1903, in the circuit court of Ritchie county, T. E. Dye instituted an action of trespass on the case for $10,000 damages against M. L. Corbin, a practicing physician of that county, for malpractice in the diagnosis and treatment of an injured ankle. Upon trial before a jury after the plaintiff had introduced all of his evidence, the defendant, without introducing any evidence, moved the court to exclude plaintiff's evidence, which motion being sustained, a verdict for defendant followed. Plaintiff moved to set aside the verdict, which motion was overruled, and judgment entered for defendant. The proper exceptions to the rulings of the court being taken, plaintiff was allowed a writ of error by a judge of this court.

The assignments of error relate to, and are based upon, the action of the court in sustaining the motion to exclude plaintiff's evidence. The court should have sustained the motion to exclude plaintiff's evidence, if that evidence was insufficient to sustain a verdict in his favor. If it ever was the law that the court should not sustain a motion to exclude plaintiff's evidence, or to exclude plaintiff's evidence and direct a verdict for defendant where there is only a scintilla of evidence to support plaintiff's case, it is no longer the law in this state. The test is not whether there is a scintilla of evidence to support the plaintiff's case, but whether the evidence will sustain a verdict in his favor. The plaintiff must show a prima facie case. This is the only reasonable rule. The utter futility of requiring a court to overrule a motion to exclude plaintiff's evidence where that evidence is insufficient to support a verdict, notwithstanding there is a scintilla of evidence supporting the plaintiff's case, is apparent. Why compel the trial to proceed when in no event can the plaintiff finally recover? It is useless to continue a trial when there is nothing to try, and to compel a defense when there is nothing against which to defend. For these reasons, our later cases hold that a motion to exclude plaintiff's evidence should be sustained when that evidence is insufficient to support a verdict in his favor. Ketterman v. Dry Fork R. R. Co., 48 W.Va. 606, 37 S.E. 683; Cobb v. Glenn Boom Lumber Co., 57 W.Va. 49, 49 S.E. 1005; Williamson & Co. v. Nigh et al. (decided at this term and not yet officially reported) 53 S.E. 124. This being the rule, was the evidence offered by plaintiff sufficient to sustain a verdict in his favor?

Plaintiff offered evidence tending to prove, among other things, the following: Plaintiff received an injury to his left ankle on the 31st of August, 1902, by being thrown from a horse about two miles from Ellenboro in Ritchie county. After receiving the injury, he was carried to the house of Mullenax, where a large number of persons gathered. The defendant, a practicing physician and the family physician of plaintiff, was sent for, and after some time came and examined the plaintiff's injury. At the time of the examination, the ankle was considerably swollen. The plaintiff said that he thought it was broken. The defendant after examination said it was dislocated, but not broken. Plaintiff requested the defendant to procure another physician, and to administer an anaesthetic. The defendant advised against the employment of another physician, and did not administer an anaesthetic. He procured cotton and splints made from pasteboard, and bandaged the injured ankle. By his direction, persons present assisted him by holding the patient while the ankle was bandaged. After the plaintiff had been thus treated, he was carried to his home, a short distance. On the next day, the defendant visited the plaintiff and treated the injury. On the second day, the defendant treated the injury; the pasteboard splints being replaced by a tin splint or tin boot leg. The defendant continued the treatment until the sixth or seventh day after the injury, when he removed the tin splint and placed the injured limb in a cast made of plaster of paris, after which he told the plaintiff that he might get out of bed and go wherever he pleased. Some time after the cast was placed on the injured limb, plaintiff complained of pain. The defendant, being called, opened the cast by cutting a groove in it, again adjusted it to the limb, and put another cast over the old one. Between 10 days and three weeks (the time is not shown with certainty) after the injury, plaintiff began to go about by the use of crutches. After he began to go about, he accidentally fell twice, but he claims without hurt to the injured ankle. About the 26th of September, 1902, he went to Parkersburg, some distance from his home, and about that time and afterward went to various other places, and did other acts which are claimed by defendant to constitute contributory negligence on the part of the plaintiff. In our view of the case, it is unnecessary to detail those acts claimed to show contributory negligence. About 10 weeks after the cast was placed on the injured limb, plaintiff went to Parkersburg to consult a physician, and while waiting for the physician to return to his office plaintiff cut off the cast. When the cast was removed, the heel of the foot seemed to be turned inward, and the fore part of the foot had dropped downward. On the 6th of January, 1903, plaintiff went to Cincinnati, Ohio, for treatment by Drs. J. R. and S. H. Spencer, practicing physicians in that city. They made a number of radiographs of the injured limb, and found the following condition, as testified to by Dr. S. H. Spencer: "He had a fracture of the fibula of the left ankle joint. There was a dislocation, and in connection with this fracture and dislocation it threw the joint inward, and the foot turned inward. The dislocation was inward, and the foot turned inward, and the fibula was broken above the external malleolus, and the lower end of the bone was turned backwards; or, in other words, the head of the fibula was broken off and was turned backwards. There was an osseous deposit thrown out in and around the head of this bone, which had cemented, as it were, the foot and ankle joint. Because of this anchylosis there was a stiffening of the ankle joint." After returning from Cincinnati, the plaintiff consulted Dr. Cunningham of Marietta, Ohio, and was treated by him, which treatment resulted in the amputation of the foot about six or seven inches above the ankle. The amputation occurred on the 17th of October, 1904. For the present, we may eliminate from consideration the question of contributory negligence; and first determine whether or not the plaintiff has made a prima facie case, excluding that question.

Plaintiff claims that the evidence in this case shows a liability on the defendant for failure to correctly diagnose the injury and for failure to properly treat the injury. The declaration charges that the defendant, having accepted the employment of physician for the treatment of the plaintiff, "so unskillfully and negligently conducted himself in that behalf that, by his want of skill and care, the injury of plaintiff became...