Gabrunas v. Miniter

• Decision Date: 04 January 1935
• Citation: 193 N.E. 551,289 Mass. 20
• Parties: GABRUNAS v. MINITER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 20

193 N.E. 551

GABRUNAS v. MINITER.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1935

Exceptions from Superior Court, Suffolk County; Bishop Judge.

Action of contract or tort by Alfred Gabrunas, by his next friend against Francis G. Miniter. Verdict directed for the defendant, and the plaintiff brings exceptions.

Exceptions sustained.

E. M. Shanley, of Boston, for plaintiff.

J. N. Clark and C. F. Hartnett, both of Boston, for defendant.

FIELD Justice.

This action (described in the bill of exceptions as an ‘ action of tort’ ) was brought by a patient-a minor-against a physician. The declaration is in two counts alleged to be for the same cause of action. The first count, apparently in contract, alleges a contract by the defendant to ‘ carefully and skillfully remove a bean from the ear of the plaintiff,’ and a breach thereof. The second count, in tort, after alleging a relationship of patient and physician between the plaintiff and the defendant, alleges that the defendant ‘ so carelessly and negligently operated on the plaintiff that he failed to remove said bean from the ear of the plaintiff.’ A verdict for the defendant was directed and the plaintiff excepted.

The direction of a verdict was error.

That the relationship of patient and physician existed between the plaintiff and defendant is conceded by the defendant. But there is no basis in the evidence for finding an express or implied contract by the defendant to remove the bean. The plaintiff, therefore, cannot recover on the first count of the declaration and further discussion of this count is unnecessary.

But the evidence warranted a finding for the plaintiff on the second count of the declaration based on negligence. The only negligence of the defendant alleged is negligence in operation on the plaintiff so that he failed to remove the bean from the plaintiff's ear. See Traverse v. Wing, 256 Mass. 320, 321, 152 N.E. 354. This defendant, according to his own testimony, had specialized in ear and throat cases in Boston for over fifteen years. Consequently he owed the plaintiff the duty to have and use in the operation the care and skill commonly possessed and exercised by similar specialists in like circumstances.21 R.C.L. 387. Cases collected, note, 59 A.L.R. 1071. See Small v. Howard, 128 Mass. 131, 35 Am.Rep. 363.

There was no evidence that the defendant did not possess the required care and skill. Whether, in operating on the plaintiff and failing to remove a bean from his ear, the defendant did not exercise such care and skill is the issue raised by the pleadings and the evidence. There was no direct medical testimony that he did not. Such a finding, if made, would have to be reached by way of inference by they jury from the circumstances shown by the evidence. Whether the common experience and knowledge of a jury of laymen warranted such an inference is the question of law for our determination. Expert medical testimony is not always essential to proof of negligence or other malpractice of a physician. See Toy v. Mackintosh, 222 Mass. 430, 431, 110 N.E. 1034, Ann.Cas. 1918C, 1188; Ernen v. Crofwell, 272 Mass. 172, 175, 172 N.E. 73, 69 A.L.R. 1140; Laughlin v. Christensen (C. C. A.) 1 F.(2d) 215, 217. See also Marangian v. Apelian, 286 Mass. 429, 436, 190 N.E. 729.

There was evidence that the plaintiff put a bean in his ear, and on the evening of the same day was taken to a hospital where,...