Frazier v. Grace Hospital, Inc.
| Decision Date | 14 April 1936 |
| Docket Number | 8313. |
| Citation | 185 S.E. 415,117 W.Va. 330 |
| Parties | FRAZIER v. GRACE HOSPITAL, Inc. |
| Court | West Virginia Supreme Court |
Submitted April 8, 1936.
Syllabus by the Court.
1. An incomplete instruction should not be given. When given, its error may be obviated by another instruction which supplements without contradicting it.
2. Want of professional skill usually requires proof by expert witnesses.
Error to Circuit Court, McDowell County.
Action by William M. Frazier, infant, against Grace Hospital Incorporated. To review a judgment setting aside a verdict for plaintiff, plaintiff brings error.
Affirmed.
Poffenbarger & Poffenbarger, of Charleston, and French & Easley, of Bluefield, for plaintiff in error.
Crockett & Tutwiler and Strother, Curd, & Berry, all of Welch, and Frank Lively, of Charleston, for defendant in error.
The plaintiff, a child, was treated a number of months in the defendant's hospital for injuries received when struck and dragged by an automobile. He claims in this action that the defendant dilatorily diagnosed and negligently treated some of his injuries. The jury rendered a verdict in his favor which the circuit court set aside, and he prosecutes error here.
The order of the circuit court recites that the verdict was set aside because of error in plaintiff's instructions Nos. 1 and 3. No. 1 follows: "The court instructs the jury that if you believe from the evidence in this case that the defendant negligently failed to properly diagnose plaintiff's injuries resulting from the automobile accident, and negligently failed to discover and properly treat the same, and that such negligence was the proximate cause of the injuries of which the plaintiff is now suffering, you will find for the plaintiff."
No. 3 duplicates No. 1 to the extent that the practical effect of the two is the same. Both instructions are binding; both submit the alleged negligence of defendant to the jury without defining what constitutes negligence in medical and surgical treatment. Instructions for defendant correctly informed the jury the extent of defendant's undertaking and that "* * * negligence of a physician or surgeon in diagnosis or treatment is established only by proof by other physicians or surgeons competent to judge that he failed to do something he should have done or that he did something he should not have done, and which did not accord with reasonable care and diligence as practiced by the accredited members of the profession in the locality, or similar locality, in which defendant's surgeons and practitioners practiced."
Ordinarily an incomplete instruction should not be given. Morrison v. Roush, 110 W.Va. 398, 158 S.E. 514. Particularly is incompleteness objectionable in a binding instruction. Mercer Funeral Home v. Addison Bros. & Smith, 111 W.Va. 616, 163 S.E. 439. The latter decision condemned a binding instruction based on negligence when neither it nor any other instruction defined negligence. We have further held that "Incompleteness in one instruction may be cured by another, where they are not inconsistent with each other." H. C. Powell Music Co. v. Storage Co., 75 W.Va. 659, 84 S.E. 563. Here the definition of negligence in defendant's instruction is not inconsistent with the phrase "negligently failed" in plaintiff's instructions, but supplements and completes them. Therefore it would seem, abstractly at least that the giving of plaintiff's instructions was not prejudicial error. The correctness of that abstraction would naturally depend on the manner in which plaintiff's counsel argued the instructions to the jury. Of that we are not advised. The record discloses only that the learned trial court regarded the giving of the instructions as prejudicial error, with which opinion we cannot concur.
Defendant was refused a peremptory instruction. This refusal was made a point of error on motion to set aside the verdict, and, although not passed upon directly by the trial court, is assigned here as cross-error and will be considered.
When plaintiff was brought to defendant's hospital, he was unconscious; his head had two stellate fractures with resultant brain injury; his right thigh bone was broken; and his body was covered with lacerations and contusions. Within forty-eight hours "pus appeared in every wound which the boy had." Within six days, his temperature rose to 105~ and hovered near that point for several weeks. It was days before he regained consciousness. Arthritis developed in several joints, with destructive effects on and displacement of the left hip joint. Improvement was slight and slow.
Plaintiff was finally removed from the defendant's hospital to one in Tennessee. He was still in bad physical condition, and the physician in charge of the latter hospital so testified. But he did not say that plaintiff's condition then was chargeable in any way to prior negligent professional care or skill. No physician or surgeon so testified. Plaintiff's counsel predicate the charge of malpractice on the testimony of laymen which showed the failure of defendant to exclude ants from a suppurating sore on plaintiff, and which tended to show failure to cleanse sufficiently some superficial wounds, and to diagnose promptly an injury to his left hip. Counsel contend that it is common knowledge that such failures would constitute actionable negligence, and that the jury was warranted in so finding.
It is not denied that on one occasion about two weeks after plaintiff had been admitted to defendant's care, ants were found on a...
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