Green v. Shaw

• Decision Date: 19 July 1926
• Docket Number: 12036.
• Citation: 134 S.E. 226,136 S.C. 56
• Parties: GREEN v. SHAW.
• Court: South Carolina Supreme Court

134 S.E. 226

136 S.C. 56

GREEN v. SHAW.

No. 12036.

Supreme Court of South Carolina

July 19, 1926

Appeal from Common Pleas Circuit Court of Richland County; M. L Bonham, Judge.

Action by Marion E. Green against Dr. Arthur E. Shaw. Judgment for defendant, and plaintiff appeals. Reversed and remanded for a new trial.

R. B Herbert and Geo. L. Dial, Jr., both of Columbia, for appellant.

Douglas McKay and John W. Crews, both of Columbia, for respondent.

STABLER J.

The plaintiff is a lady residing in the city of Columbia and engaged in the business of interior decorating. The defendant, Dr. Arthur E. Shaw, is a prominent physician of that city. About the 5th and 19th of November, 1922, he treated the index finger of the right hand of the plaintiff by X-ray for the purpose of removing two warts therefrom. The plaintiff brought this suit for $10,000 for damages alleged to have resulted from the treatment.

The relevant portions of the complaint are as follows:

"(3) That on or about the 5th day of November, 1922, the plaintiff engaged the defendant to treat the index finger of her right hand by X-ray for the purpose of removing two small warts on said finger.

(4) That the defendant gave the plaintiff X-ray treatments on or about the 5th of November, 1922, and on or about the 19th of November, 1922, and that as a result of the X-ray treatment her finger was severely burned.

(5) That the defendant in administering the X-ray treatment negligently, wantonly, and willfully failed to properly protect the finger from the powerful and dangerous rays which were being used, and exposed the finger for too long a time to say rays, and severely and dangerously burned the plaintiff's finger in administering said treatment to such an extent that the plaintiff was unable to use her hand for many weeks after the treatment, has suffered intense and excruciating pain, has been unable to perform her duties in connection with her occupation as an interior decorator, has a permanent injury to her finger, and has a deformity of her finger which will permanently disfigure her hand and make it more difficult for her to carry on her chosen profession, and has incurred medical expense in obtaining treatment for the said burn.

(6) That the aforesaid injuries were caused by the negligence, wantonness, and willfulness of the defendant in failing to properly protect the plaintiff's finger with a metal guard or shield while administering said treatment, in exposing the finger to the powerful rays for 13 minutes which was too long a period of time, in failing to properly administer the treatment as above indicated, and in burning the plaintiff's finger by the use of the X-ray; all to the plaintiff's damage in the sum of $10,000."

The following is the answer of the defendant:

"(1) Admits the allegations of paragraphs 1, 2, and 3.

(2) Admits the allegations of paragraph 4 that on or about the 5th and 19th of November, 1922, he administered X-ray treatments to the plaintiff, and admits further that the finger in question was burned, but has neither knowledge nor information sufficient to form a belief that the burning was of the nature contended for in said paragraph.

(3) Denies specifically the allegations of paragraph 5 as to the manner in which this defendant administered the X-ray treatment and that this defendant dangerously burned the plaintiff's finger, and has neither knowledge nor information sufficient to form a belief as to the remaining allegations of said paragraph.

(4) Denies specifically the allegations of paragraph 6, and denies further each and every other allegation in said complaint contained not hereinabove specifically admitted or explained."

The jury gave a verdict for the defendant. Thereafter a motion was made for a new trial, which was overruled by the trial judge.

The plaintiff now appeals to this court by four exceptions imputing error in two main particulars: (1) Error in admitting the testimony of Dr. Jennings and of Dr. McIntosh "as to the efficiency and carefulness of Dr. Shaw and as to his reputation"; and (2) error on the part of the court in refusing plaintiff's motion for a new trial on the ground that the verdict was against the overwhelming preponderance of the evidence.

When Dr. R. T. Jennings, a witness for the defendant, was on the stand, he testified as follows; this testimony being admitted by the court over the objection of the plaintiff:

"Q. What is your observation of Dr. Shaw as to his efficiency or carefulness in general?

Mr. Herbert: We object. We haven't attacked Dr. Shaw's reputation as a physician. That hasn't been put in issue. He may be a very good physician, and he may have done a very careless thing; he may be very careful, and he may have done a very careless thing.

The Court: It seems to me it has some probative value. I think it is competent.

Mr. Herbert: Dr. Shaw's reputation as a careful physician? The Court: Yes, sir.

Mr. Herbert: I ask to note my objection.

A. He has always been very careful with me and I have got good results.

The Court: I don't think he is entitled to go into specific cases, but only his general reputation."

When Dr. James H. McIntosh, who was also a witness for the defendant, was on the stand, he testified along the same line:

"Q. From your general knowledge, please state what is Dr. Shaw's reputation professionally as a careful and expert operator.

Mr. Herbert: We object for the same reasons.

The Court: The same ruling.

Witness: I have used him in a great many cases where X-ray work was necessary.

The Court: One minute-what is his reputation?

Witness: His reputation is good as an X-ray man."

This suit was based upon certain specific acts of the defendant, alleged to be negligent, willful, and wanton. No attack was made upon, nor does this action involve, his general skill, competency, ability, or reputation. A physician might be ever so skillful or competent in a general way, or might have an unexcelled reputation, and yet be guilty of the grossest negligence in his treatment of a particular case. It is clear to reason, therefore, that, in the case at bar, testimony as to Dr. Shaw's reputation was inadmissible, and the admission of such testimony was reversible error. This view is supported by the weight of authority.

In 5 Thompson on Negligence, § 6712, it is said:

"Where the physician or surgeon is charged with negligence, and not with incompetency, the matter of his fitness is not an issue, and evidence to show competency or skill is clearly inadmissible."

In 30 Cyc. 1585, we find:

"Where the action is for negligence, and the skill of the physician is not put in issue, he cannot show his general reputation for skill."

In 22 Am. & Eng. Ency. (2d Ed.) 809, we find:

"The general reputation of a physician for competency and skill is inadmissible in an action for malpractice, because the issue is his conduct in the particular case ."

In Jones on Evidence, § 148, it is said:

"We have already seen that in actions based on negligence it is irrelevant to prove that the plaintiff or the defendant has on similar occasions been careful or negligent; in like manner it is irrelevant to show that either party has hitherto had the reputation of being prudent or negligent."

In Stevenson v. Gelsthorpe, 10 Mont. 563, 27 P. 404, the court said:

"In the trial of this case the court allowed, over the objection and exception of defendant's counsel, certain witnesses to testify as to the defendant's reputation, at Sand Coulee, for skill and ability as a physician. This was clearly improper. Defendant's reputation as a physician was not in issue. It was his specific acts in the treatment of a certain case, and the facts as to whether his acts were unskillful and negligent in this treatment was the matter in issue. A doctor's reputation for skill and ability will not exonerate him, where gross negligence and want of the application of skill is alleged and proved. Nor can the fact that a doctor is reputed to be negligent or unskillful be allowed as proof to establish negligence or unskillful treatment in a particular case, because he may have treated that case with unusual skill and care. The introduction of that evidence was not only improper from a legal view, but it was of a character which may have unjustly prejudiced defendant's case before the jury upon a point where defendant had made no preparation to defend. It is likely such improper evidence misled two-thirds of the jury who concurred in the verdict."

In Engstrom v. Dental Co., 97 Or. 634, 193 P. 187, it was held that (quoting syllabus):

"In an action where negligence on the part of a dentist is charged, evidence as to his reputation for care is inadmissible ."

In Baker v. Hancock, 29 Ind.App. 456, 64 N.E. 38, which was an action for malpractice, defendant's testimony as to the successful treatment of other patients by him for the same disease was held inadmissible.

Hackler v. Ingram (Tex. Civ. App.) 196 S.W. 279, was an action against a physician for alleged negligence in the performance of a particular operation. The court held that evidence of the general skill and efficiency of the physician was not admissible, and said:

"However careful and competent a person may be generally, such fact is no defense to a specific act of negligence."

Holtzman v. Hoy, 118 Ill. 534, 8 N.E. 832, 59 Am. Rep. 390, was an action against a physician for malpractice in treating a fractured leg. The court said:

"As a physician or surgeon cannot bring the requisite skill to any case unless he has it, it follows the professional skill of the defendant was, if not in express terms, at least by implication, put in issue in this case, and the onus probandi was upon the plaintiff to show his want of such skill. The

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