Ewing v. Goode

Citation78 F. 442
PartiesEWING et al. v. GOODE.
Decision Date15 January 1897
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

Blackburn & Rhyno, for plaintiffs.

Smith &amp Kuhn, for defendant.

TAFT Circuit Judge.

In this case the petition of Nellie Ewing, the plaintiff, alleges that she employed the defendant, Goode, a surgeon and oculist, to cure her of a certain malady of her eye, for a reward to be paid therefor; that defendant entered upon such employment, but did not use proper care and skill in the operating on the eye of plaintiff, and did not bestow proper attention and treatment upon the eye after the operation causing her to suffer great pain, and to lose the right eye entirely, and to impair the sight of her left eye. The answer of the defendant denies unskillfulness or lack of attention on his part and any injury to the plaintiff caused thereby.

It is well settled that in such an employment the implied agreement of the physician or surgeon is that no injurious consequences shall result from want of proper skill, care, or diligence on his part in the execution of his employment. If there is no injury caused by lack of skill or care, then there is no breach of the physician's obligation, and there can be no recovery. Craig v. Chambers, 17 Ohio St. 253, 260. Mere lack of skill, or negligence, not causing injury, gives no right of action, and no right to recover even nominal damages. This was the exact point decided in the case just cited.

In Hancke v. Hooper, 7 Car. & P. 81, Tindal, C.J., said:

'A surgeon is responsible for an injury done to a patient through the want of proper skill in his apprentice; but, in an action against him, the plaintiff must show that the injury was produced by such want of skill, and it is not to be inferred.'

Before the plaintiff can recover, she must show by affirmative evidence--first, that defendant was unskillful or negligent; and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, she has presented no case for the consideration of the jury. The naked facts that defendant performed operations upon her eye, and that pain followed, and that subsequently the eye was in such a bad condition that it had to be extracted, establish neither the neglect and unskillfulness of the treatment, nor the causal connection between it and the unfortunate event. A physician is not a warrantor of cures. If the maxim, 'Res ipsa loquitur,' were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the 'ills that flesh is heir to.'

The preliminary question for the court to settle in this case, therefore, is whether there is any evidence sufficient in law to sustain a verdict that defendant was unskillful or negligent, and that his want of skill or care caused injury. In the courts of this and other states the rule is that if the party having the burden of proof offer a mere scintilla of evidence to support each necessary element of his case, however overwhelming the evidence to the contrary, the court must submit the issue thus made to the jury, with the power to set aside the verdict if found against the weight of the evidence. In the federal courts this is not the rule. According to their practice, if the party having the burden submits only a scintilla of evidence to sustain it, the court, instead of going through the useless form of submitting the issue to the jury, and correcting error, if made, by setting aside the verdict, may in the first instance direct the jury to return a verdict for the defendant. Hence our inquiry is: Does the case now submitted show more than a scintilla of evidence tending to show want of skill or care by defendant, or injury caused thereby? Railway Co. v. Lowery, 20 C.C.A. 596, 74 F. 463.

In many cases, expert evidence, though all tending one way, is not conclusive upon the court and jury, but the latter, as men of affairs, may draw their own inferences from the facts, and accept or reject the statements of experts; but such cases are where the subject of discussion is on the border line between the domain of general and expert knowledge, as, for instance, where the value of lane is involved, or where the value of professional services is in dispute. There the mode of reaching conclusions from the facts when stated is not so different from the inferences of common knowledge that expert testimony can be anything more than a mere guide. But when a case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. Again, when the burden of proof is on the plaintiff to show that the injury was negligently caused by defendant, it is not enough to show the injury, together with the expert opinion that it might have occurred from negligence and many other causes. Such evidence has no tendency to show that negligence did cause the injury. When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither. Louisville & N.R. Co. v. East Tennessee, V. & G. Ry. Co., 22 U.S.App. 102, 114, 9 C.C.A. 314, and 60 F. 993; Ellis v. Railway Co., L.R. 9 C.P. 551.

These facts may be taken as undisputed in this case:

Mrs Ewing, the plaintiff, lives with her husband in Covington, Ky. He was, during the time of the existence of the professional relation between his wife and the defendant, a printer, engaged in the office of the Commercial Gazette Printing Office, in this city. Dr. Goode is a highly-educated and experienced physician and oculist of the city, now engaged solely in treating diseases of the eye. In September, 1894, Mrs. Ewing began to feel a haziness in her right eye. It grew worse, so that in the spring of the next year she consulted Dr. Tangiman, an oculist of this city. He told her that she had cloudiness of the lens. Becoming dissatisfied with his treatment, she went, upon the recommendation of Dr. Kebler, her family physician, to consult Dr. Goode. He examined her, and told her that she had cataracts in both eyes; that an operation would soon have to be performed on the right eye. Plaintiff's own expert witness, Dr. Buckner, who examined the left eye in June, 1896, confirms the statement that there is a cataract in the left eye. Cataract is a disease of the lens of the ye, which renders it cloudy and opaque, and prevents the passage through it of the rays of light, which in its normal condition it focuses on the retina. The operation for cataract is an operation by which the whole lens is removed from the capsule covering in which it is inclosed and suspended in the eye. The removal is usually effected by cutting a passageway for it, through the cornea and the iris, both of which are situated in the eye in front of the lens. This may be done at the same time with the main operation, or long enough before to permit the healing of the wound necessary in cutting before the removal of the lens. The defendant pursued the latter course. The auxiliary operation is called the 'preliminary iridectomy.' It was performed on the 8th day of July, 1895. It was a smooth and successful operation. The wound healed quickly. No inflammation or formation of pus ensued. On the 25th of September following, the main operation was performed. Through the passageway in the iris, an instrument was inserted, and the covering of the lens capsule was ruptured, and then the lens was gently pressed out through this opening and through the hole cut in the iris in the preliminary operation. The operation was smooth and successful, and after a week or 10 days the wounds were nicely healed. Close attention was given by the defendant and his assistant, Dr. Heflebower, to see that no piece of the iris tissue should be caught or incarcerated in the lips of the wound. No inflammation or pus followed the operation. There was pain in the right eye on the first day, which was relieved apparently, and at least for a time, by a loosening of the bandage. The treatment pursued after each operation was that approved by the medical profession. After 10 days, three to four tenths of vision was found to be restored to the right eye by the use of the cataract glass, which is the lens needed to supply the place of the lens which was extracted. By the use of the ophthalmoscope, the whole interior of the ye was explored; the media were found to be clear; and all the parts were normal. After tow or three weeks, the plaintiff was able to go about, and upon the 19th of October came from her home, in Covington, to visit the defendant, and paid him $10 on his bill of $100. An examination of the eye showed that it was in good condition, and the test for vision was as stated above. The treatment testified to, and not denied, up to this time, was in accord with the best approved views of the profession. During this period, the plaintiff visited Shillito's store several times, and did some of her housework at home, and on the 11th of November came again to visit the defendant, and to pay him $10. He examined the eye, and found it in good condition, without the slightest indication in it that there was anything wrong. On the 19th of November, the plaintiff complained of pain, and...

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