George v. Shannon

• Decision Date: 07 July 1914
• Docket Number: 18,847
• Citation: 92 Kan. 801,142 P. 967
• Parties: C. H. GEORGE, Appellee, v. DR. L. W. SHANNON, Appellant
• Court: Kansas Supreme Court

142 P. 967

92 Kan. 801

C. H. GEORGE, Appellee, v. DR. L. W. SHANNON, Appellant

No. 18,847

Supreme Court of Kansas

July 7, 1914

Decided July, 1914.

Appeal from Brown district court; WILLIAM I. STUART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PHYSICIAN--Malpractice--Proper Basis for Questions to Expert Witness. Testimony of a physician, so far as it is expert testimony, may be based upon personal examination or upon the facts proved upon a trial or upon both such examination and proven facts, or, preferably, it may be based upon hypothetical questions.

2. SAME--Discharge of Physician--Not Contributory Negligence. The mere fact that a patient discharges or quits the care of his attending physician and employs another physician, is not evidence of contributory negligence in an action by the patient against the former physician for negligence in the discharge of his duty to the patient.

Edwin D. McKeever, of Topeka, W. F. Means, and F. M. Pearl, both of Hiawatha, for the appellant.

J. J. Baker, of Troy, F. W. Paschal, of St. Joseph, Mo., and S. F. Newlon, of Hiawatha, for the appellee.

OPINION

SMITH, J.:

This action was brought to recover damages from a physician for the alleged negligent and unskillful use of an X-ray machine in taking pictures of a portion of the body of the appellee, his patient. It was alleged that appellant as such physician advised appellee that such pictures were necessary to enable appellant to make a proper diagnosis of appellee's malady; that appellant used the machine on four different dates between and including October 28 and November 13, 1911; that he made too many exposures of appellee's body to the rays of the machine and placed the tube or bulb of the machine too close to appellee's body and negligently failed to cover the abdomen of appellee or in any manner to protect it from the injurious effects of such rays; that by reason of the unskillful, careless and negligent use of such machine upon the body of the appellee there developed, about November 15, 1911, a sore place known as a third-degree X-ray burn on appellee's abdomen, which is incurable.

Further, that by reason of the fact stated the appellee has suffered, is suffering and will long continue to suffer intense bodily pain and mental anguish; that prior to receiving such injuries appellee was in good health, except the trouble in his back, and was earning fifty dollars per month; that by reason of the injuries the appellee is wholly incapacitated from labor of any kind and from earning any wages; that appellee has been compelled thereby to employ physicians to treat such injuries and has expended $ 300 therefor; that appellee has been damaged by the gross negligence of appellant in such treatment in the sum of $ 10,550.

The appellant in answer made a general denial, alleged that he was a regular practicing physician and surgeon; that appellee came to him for treatment for some kidney trouble; that he made a careful physical examination but found that in the exercise of ordinary skill and care he could not determine by such examination definitely the disease of which appellee was afflicted -- whether or not appellee had a stone in the kidney -- except by the application of the X-ray by which a photograph of the kidney could be taken, and so informed appellee; that appellee agreed that the X-ray photograph should be taken, and it was done; that the X-ray was applied in a scientific manner and according to the most approved manner; that if any injury resulted it was not through any fault, negligence or want of skill of appellant but on account of appellee's susceptibility to X-ray action, which could not in the exercise of ordinary care, caution and skill have been ascertained; that upon the application of the X-ray he requested appellee to return to him for further treatment, and if any burn developed as a result of the operation it was through appellee's own fault and negligence and through his failure to follow the instructions to return to appellant for further treatment and not through any fault, negligence or want of care of the appellant, and if such burn has failed to heal such failure has been caused by the negligence of the appellee; that at and for a long time prior to such examination the appellee had been afflicted with kidney trouble and whatever pain or loss of time appellee has suffered has been the result of such ailment and not the result of any examination by appellant.

The reply was a general denial.

The first objection urged upon the trial was as to the admissibility of the expert testimony of Doctor Kenney. Preliminary questions had been asked as follows:

"Q. Do you know anything of the history of the case Doctor? A. I questioned the patient, Mr. George.

"Q. Did he relate to you the history of the case? A. He and his Dr. Campbell.

"Q. Was the conversation with his Dr. Campbell in the presence of Mr. George? A. Yes, sir.

"By the Court:

"Q. Did you hear the testimony of Mr. George when he was on the witness stand this afternoon? A. Yes, sir.

"Q. Did you hear the testimony of Dr. Campbell on the witness stand? A. Yes, sir.

"Q. Have you heard the testimony of these other witnesses who testified this evening regarding his condition at the time he was sick? A. Yes, sir."

Thereupon the following question was asked by appellee's attorney:

"Q. I will repeat the question: Bearing in mind the time the burn first appeared on the person injured, about November 12, 1911, and the condition at this time as you discovered in your examination, and the history of the case, what would you say as to the possibility of its ever healing?"

To which question the following objection was made:

"Objected to as incompetent, irrelevant and immaterial, no proper foundation laid, and assuming a state of facts which only the jury can determine the truth of the matter. Overruled. Defendant excepting. And further objection, the testimony involves the statement of different witnesses who have not been testifying to exactly the same thing, and necessarily calls upon this witness to say what the fact is that those witnesses have testified to. Overruled. Defendant excepting.

"A. Well, there is a possibility of its healing."

It had also appeared from the evidence that the witness had examined the burn upon appellee's body, and that he had heard the evidence of witnesses who had preceded him, including the appellee and his attending physician. It is insisted by appellant that the witness should have been examined upon hypothetical questions. In A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 463, it was said:

"It is insisted that the testimony of a physician, so

The physician in this case had heard the details of the application of the X-ray and its effect in the burn testified to by the appellee and by other witnesses, and he had examined the burn. There is nothing to indicate that he based his opinions upon the talk he had had with the appellee or the attending physician. There was no dispute in the evidence as to the fact that the appellant applied the X-ray to appellee's body and that the burn resulted...