Gore v. Brockman

• Decision Date: 31 May 1909
• Citation: 119 S.W. 1082,138 Mo. App. 231
• Parties: GORE v. BROCKMAN.
• Court: Missouri Court of Appeals

119 S.W. 1082

138 Mo. App. 231

GORE v. BROCKMAN.

Kansas City Court of Appeals. Missouri.

May 31, 1909.

Rehearing Denied June 14, 1909.

1. WITNESSES (§ 268)—CROSS-EXAMINATION.

In an action against a physician for malpractice, it was improper and prejudicial to ask defendant on cross-examination whether or not he took out protective insurance about the time plaintiff's condition became serious to guard him against damages in suits for malpractice.

2. WITNESSES (§ 268)—CROSS-EXAMINATION.

In an action against a physician for malpractice, it was improper to ask defendant on cross-examination if he had not conveyed property, though it would have been permissible to ask him if he had conveyed his property to avoid the payment of damages he might have considered he had incurred.

3. PHYSICIANS AND SURGEONS (§ 18)—ACTIONS FOR MALPRACTICE—INSTRUCTIONS.

In an action against a physician for malpractice, the proper form of submitting the question whether X-ray treatment was in accordance with the ordinary and established practice of the medical profession for the treatment of the disease from which plaintiff was suffering was whether an ordinarily skillful and prudent physician would have adopted that treatment under the circumstances.

4. PHYSICIANS AND SURGEONS (§ 18)—ACTIONS FOR MALPRACTICE—INSTRUCTIONS.

In an action against a physician for malpractice, instructions that defendant as a physician should not be held as an insurer of the success of treatment by the X-ray process, or that it would not be attended by unexpected results, and that he was only required to have the necessary learning and experience to give the treatment in a careful and prudent manner, were proper, and should be given, unless the issue is clearly tendered that there was negligence in prescribing such treatment at all.

5. PHYSICIANS AND SURGEONS (§ 14)—DEGREE OF SKILL AND CARE REQUIRED.

A physician may not be held for honest error of judgment, being only required to give his patient his diligent attention and best thought in prescribing and applying treatment, and to use such care and skill as an ordinarily capable doctor would use under like circumstances.

Appeal from Circuit Court, Miller County; Wm. H. Martin, Judge.

Action by Virginia Gore against Henry H. Brockman. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. S. Pope, D. E. Wray, and L. N. Musser, for appellant. Moore & Williams and Hunter & Kraemer, for respondent.

ELLISON, J.

Defendant is a physician, and plaintiff was his patient. She charged malpractice and recovered judgment in the trial court for $3,500. The petition alleges: That plaintiff was suffering from some "malady," and that she engaged defendant to treat her. That defendant pronounced her trouble to be "the hardening of the right lobe of the liver and proposed to treat her by means of what is generally known as an X-ray machine." That defendant "unskillfully, rashly, unprofessionally, negligently, and ignorantly commenced treating her with the X-ray." That in so doing the "right side of the abdomen for a space of more than one foot in diameter was blistered and became raw and sore," etc. The petition then, among other things, sets forth the serious and distressing consequences following such treatment.

Defendant was a witness in his own behalf, and on cross-examination plaintiff's counsel was permitted to ask him, over the objection of his counsel, the following question: "Doctor, I will ask you if on or about that date [the time when plaintiff's condition became serious] you didn't take out what is called `doctor's protective insurance' to guard you against damages that might accrue from this or any other suit for malpractice?" The defendant answered that he carried insurance of that kind. The question was improper and was highly prejudicial. The issue on trial was negligent treatment of plaintiff by defendant as her physician, and indemnity insurance would not aid in determining that question; but, more than that, its tendency and effect was to withdraw the real defendant from the consideration of the jury and to substitute for him an insurance company. A litigant has a right to his own personality, and the opposing party has no right to have the consideration of his claim influenced or measured by any other standard, so far as individuality is concerned, than that afforded by the party of whom he complains. He...