Fox v. Mason

• Decision Date: 25 September 1924
• Parties: FOX . v. MASON.
• Court: Virginia Supreme Court

124 S.E. 405

FOX .

v.MASON.

Special Court of Appeals of Virignia.

Sept. 25, 1924.

Error to Circuit Court, Accomac County.

Action by L. Webster Fox against Walter N. Mason. A verdict for plaintiff was set aside by the court, and judgment rendered for defendant, and plaintiff brings error. Reversed.

Elmer W. Somers, of Accomac, for plaintiff in error.

G. Walter Mapp, of Accomac, for defendant in error.

HOLT, J. This Is an action in, assumpsit for $350 by Dr. L. Webster Fox against Walter N. Mason. The declaration contains only the common counts. Defendant pleaded the general issue, it was submitted to a jury, and there was a verdict for the plaintiff in the sum of $175. This, on motion of the defendant, was set aside, and final judgment for him entered, to all of which the plaintiff excepted. The defendant, a citizen of Accomac county, Va., was suffering from a lachrymal abscess, and was treated by his local physician. He was advised that he needed the services of a specialist, and thereupon went to Philadelphia and consulted Dr. O. Luther Latchford, who, after diagnosing his case, referred him to the plaintiff, Dr. Fox, a specialist of high standing in diseases of this character. He confirmed Dr. Latch-ford's diagnosis, and ascertained that the abscess was enlarged and almost ready to burst, and was of opinion that an immediate operation was necessary not only to save the nasal cavity, but also to save the eye itself. The operation, which is described as a major one, the plaintiff promptly performed, and continued to treat Mr. Mason for some time afterwards. The plea gives no hint as to the character of the defense relied upon, but from the evidence it appears that complaint is made, not so much of the operation itself, as of subsequent treatment, which it is said was unskillful and negligent The defendant contends, not that the fee is excessive, but for, reasons set out in the evidence that nothing at all is due.

Certain instructions were tendered by the plaintiff and refused by the court, to which exceptions were taken. There was, as we have seen, a verdict for the plaintiff, to which he did not except, and which he is asking here be confirmed.

In Newberry v. Williams, 89 Va. 298, 15 S. E. 865, it was held that a motion for a new trial in the court below was a necessary prerequisite to a review on appeal of the judgment complained of. This general rule has been changed by statute, see Code, § 6254, but it is still true that a plaintiff who is satisfied with the verdict will not be heard to complain of instructions. What boots it to him if they are wrong?

We are thus brought to the action of the court in setting aside the verdict of the jury and in giving final judgment.

In considering the evidence it is necessary to ascertain what are the rights and duties of the plaintiff—what is required of him before he can recover.

"A physician attending a patient is bound by his contract, unless otherwise provided, to pos sess and to bestow upon the case such reasonable and ordinary skill and diligence as physicians practising in similar localities and in the same general line of practice ordinarily exercised in like cases, time and locality being taken into account. * * * These rules apply to surgeons as well as to physicians, * * * and one who accepts employment as a specialist must have that degree of skill and knowledge which is ordinarily possessed by physicians engaged in that specialty and must exercise his best judgment in the application of his skill and in the use of ordinary care." 3 Wharton & Stille's Med. Jurisp. § 473.

"In determining the degree of care and skill which the law exacts of physicians and surgeons, regard must be had to the state of advancement of the profession at the time of treatment. They are held to exercise the ordinary care and skill of their profession in the light of modern learning and enlightenment on the subject." 21 R. C. L. § 29.

Physicians and surgeons are held to that degree of care and skill "such as is exercised generally by physicians of ordinary care and skill in similar communities, and such Is the rule established by the cases." 21 R. C. L. § 30.

To the same effect see Cbesley v. Durant, 243 Mass. 180, 137 N. E. 301; Edwards v. Uland (Ind. Sup.) 140 N. E. 546; Knowles v. Blue, 209 Ala. 27, 95 South. 481; Berkholz v. Benepe, 153 Minn. 335, 190 N. W. 800; Kuhn v. Brownfield, 34 W. Va. 252, 12 S. E. 519, 11 L. R. A. 700; Ewing v. Goode (C. C.) 78 Fed. 442; Hunter v. Burroughs, 123 Va. 113, 90 S. E. 360.

The rule is the same as to specialists.

In Rann v. Twitchell, 82 Vt. 79, 71 Atl. 1045, 20 L. R. A. (N. S.) 1030, the court said:

"One who holds himself out as a specialist in the treatment of a certain organ, injury, or disease is bound to bring to the aid of one so employing him that degree of skill and knowledge which is ordinarily possessed by those who devote special study and attention to that particular organ, injury or disease, its diagnosis, and its treatment, in the same general locality, having regard to the [then] state of scientific knowledge." 82 Vt. 79, 71 Atl. 1045, 20 L. R. A. (N. S.) 1030; 21 R. C. L. § 32; 3 Wharton & Stille's Med. Jurisp. 473.

There is no conflict of authorities if we remember that ordinary care and skill have reference to the character and condition of the service. Due care in a lumber camp might be gross negligence at Johns Hopkins. The surgeon is not an insurer. Kuhn v. Brownfield, supra.

"A failure to cure is not enough, in itself, to raise an inference of negligence in diagnosis and in the treatment adopted." Edwards v. Uland, supra.

"But his [the physician] engagement is not to cure the patient, nor does he insure that his treatment will be successful. The mere failure to effect a cure does not even raise a presumption of a want of proper care, skill, and diligence." Lawson v. Conoway, 37 W. Va. 159, 16 S. E. 564, 18 L. R. A. 627, 38 Am. St. Rep. 17.

See, also, Knowles v. Blue, supra; 3 Wharton & Stille's Med. Jurisp. § 466.

And this is in substance the decision in Hunter y. Burroughs, supra. All that case held was that some weight might be given to results along with other facts and circumstances proven in the case, just as exclusive unexplained possession of property recently stolen does not warrant a presumption of housebreaking, but may be considered along with other evidence.

The doctrine of res ipsa loquitur has no application, and negligence must be proven. Ewing v. Goode, supra.

What are the duties of a surgeon after an operation?

"But the care and diligence, and skill required relates to professional duties, and not to nursing and providing necessaries, etc. He is not bound to nurse his patients and provide for them, though he is required to instruct others how to do it." 3 Wharton & Stifle's Med. Jurisp. § 473, citing Graham v. Gautier, 21 Tex. 111.

In Gillette v. Tucker, 67 Ohio St. 106, 65 N. E. 865, 93 Am. St. Rep. 639, the court said:

"Moreover, we hold the proposition to be...