George v. Shannon, 18,847

CourtUnited States State Supreme Court of Kansas
Writing for the CourtSMITH, J.:
Citation92 Kan. 801,142 P. 967
Docket Number18,847
Decision Date07 July 1914
PartiesC. H. GEORGE, Appellee, v. DR. L. W. SHANNON, Appellant

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

[92 Kan. 802] 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 [142 P. 968] 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 [92 Kan. 803] 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...

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19 practice notes
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • 6. März 1928
    ...v. Magee, 217 Ill. App. 272;Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217, 136 N. W. 741, 40 L. R. A. (N. S.) 485;George v. Shannon, 92 Kan. 801, 142 P. 967, Ann. Cas. 1916B, 338;Ryan v. St. Paul Union Depot Co., 168 Minn. 287, 210 N. W. 32;Holt v. Ten Broeck, 134 Minn. 458, 159 N. W. 1......
  • Whitmore v. Herrick, 38636
    • United States
    • United States State Supreme Court of Iowa
    • 6. März 1928
    ...(209 N.W. 835); Holcomb v. Magee, 217 Ill.App. 272; Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217 (136 N.W. 741); George v. Shannon, 92 Kan. 801 (142 P. 967); Ryan v. St. Paul Union Depot Co., 168 Minn. 287 (210 N.W. 32); Holt v. Ten Broeck, 134 Minn. 458 (159 N.W. 1073); Evans v. Clapp......
  • Waddle v. Sutherland, 28430
    • United States
    • United States State Supreme Court of Mississippi
    • 17. Februar 1930
    ...Shockley v. Tucker, 127 Iowa 456, 103 N.W. 360; Jones v. Tel. Co., 118 Minn. 217, 136 N.W. 741, 40 L.R.A. (N.S.) 485; George v. Shannon, 92 Kan. 801, 142 P. 967, Ann. Cas. 1916B, 338; Evans v. [156 Miss. 549] Clapp (Mo. App.), 231 S.W. 79; Hamilton v. Harris (Tex. Civ. App.), 223 S.W. 533; ......
  • Hunter v. Burroughs.*
    • United States
    • Virginia Supreme Court of Virginia
    • 13. Juni 1918
    ...plaintiff: Kopecky v. Hasek[96 S.E. 369] Bros. (Iowa) 162 N. W. 828; Shockley v. Tucker, 127 Iowa, 456, 103 N. W. 360; George v. Shannon, 92 Kan. 801, 142 Pac. 967, Ann. Cas. 1916B, 338. 3. This brings us to the consideration of the remaining assignment, which is, that the trial court erred......
  • Request a trial to view additional results
19 cases
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • 6. März 1928
    ...v. Magee, 217 Ill. App. 272;Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217, 136 N. W. 741, 40 L. R. A. (N. S.) 485;George v. Shannon, 92 Kan. 801, 142 P. 967, Ann. Cas. 1916B, 338;Ryan v. St. Paul Union Depot Co., 168 Minn. 287, 210 N. W. 32;Holt v. Ten Broeck, 134 Minn. 458, 159 N. W. 1......
  • Whitmore v. Herrick, 38636
    • United States
    • United States State Supreme Court of Iowa
    • 6. März 1928
    ...(209 N.W. 835); Holcomb v. Magee, 217 Ill.App. 272; Jones v. Tri-State Tel. & Tel. Co., 118 Minn. 217 (136 N.W. 741); George v. Shannon, 92 Kan. 801 (142 P. 967); Ryan v. St. Paul Union Depot Co., 168 Minn. 287 (210 N.W. 32); Holt v. Ten Broeck, 134 Minn. 458 (159 N.W. 1073); Evans v. Clapp......
  • Waddle v. Sutherland, 28430
    • United States
    • United States State Supreme Court of Mississippi
    • 17. Februar 1930
    ...Shockley v. Tucker, 127 Iowa 456, 103 N.W. 360; Jones v. Tel. Co., 118 Minn. 217, 136 N.W. 741, 40 L.R.A. (N.S.) 485; George v. Shannon, 92 Kan. 801, 142 P. 967, Ann. Cas. 1916B, 338; Evans v. [156 Miss. 549] Clapp (Mo. App.), 231 S.W. 79; Hamilton v. Harris (Tex. Civ. App.), 223 S.W. 533; ......
  • Hunter v. Burroughs.*
    • United States
    • Virginia Supreme Court of Virginia
    • 13. Juni 1918
    ...plaintiff: Kopecky v. Hasek[96 S.E. 369] Bros. (Iowa) 162 N. W. 828; Shockley v. Tucker, 127 Iowa, 456, 103 N. W. 360; George v. Shannon, 92 Kan. 801, 142 Pac. 967, Ann. Cas. 1916B, 338. 3. This brings us to the consideration of the remaining assignment, which is, that the trial court erred......
  • Request a trial to view additional results

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