Harju v. Allen

• Decision Date: 21 May 1920
• Docket Number: Nos. 21689,21713.,s. 21689
• Citation: 146 Minn. 23,177 N.W. 1015
• Parties: HARJU v. ALLEN (two cases).
• Court: Minnesota Supreme Court

146 Minn. 23

177 N.W. 1015

HARJU

v.ALLEN (two cases).

Nos. 21689, 21713.

Supreme Court of Minnesota.

May 21, 1920.

Appeal from District Court, Crow Wing County; W. S. McClenahan, Judge.

Actions by Arvid Harju against F. A. Allen. Verdict for plaintiff, new trial was granted for trial errors, and both parties appeal. Order affirmed.

Syllabus by the Court

A physician does not insure either correct diagnosis or correct treatment, but he is required to possess the skill and learning which is possessed by the average member of his school of the profession in good standing in his locality, and to apply that skill and learning with reasonable care. If he does this he is not liable for error of judgment in a doubtful case in making a diagnosis or prescribing treatment.

There are some facts pertinent to a case in malpractice which may be proven only by the testimony of experts, such as the standards of practice in different schools of medicine or matters resting upon pure theory and judgment, based upon reasons familiar only to experts, but it is not the law that a physician can never be charged with malpractice save upon opinion evidence. In this case there was evidence of malpractice sufficient for submission to the jury.

A hypothetical question must embody substantially all the undisputed facts relating to the subject upon which the opinion of the witness is asked. A hypothetical question, asked of an expert in a malpractice case, calling for an opinion as to defendant's diagnosis and treatment, which omits to advise the witness as to the nature and result of certain X-ray pictures which were taken and used for purpose of diagnosis, was improper. Baldwin, Baldwin, Holmes & Mayall, of Duluth, for Allen.

M. E. Louisell and John R. Heino, both of Duluth, and M. E. Ryan, of Brainerd, for Harju.

HALLAM, J.

Plaintiff was injured by a cave-in of earth while working in a mine. He was promptly taken to a hospital and was there treated by defendant, a surgeon. The evidence is practically conclusive that plaintiff had suffered a fracture of some one or more of the pelvic bones and that as a result the head of the right femur was driven in. Plaintiff's evidence is that he suffered much pain, was unable to move his toes, could not move his right leg in any direction, that it caused him great pain to walk or to stand on his right leg; and that he advised defendant of these facts. It is admitted that his hip appeared to defendant to be extremely painful on manipulation.

Defendant failed to diagnose plaintiff's injury correctly. Once in his testimony he said he came to the conclusion that plaintiff was suffering from a sprain of the hip joint. Plaintiff's evidence is that, on occasions, defendant told him there was nothing the matter with him at all, that he was lazy, was faking, bluffing, shamming, that he was a baby, that the trouble was with his head, that he was trying to make a big case against the company, that defendant compelled plaintiff to walk, told him he should walk three hours every day, that he should go up and down cellar, that all he needed was a wheelbarrow and shovel. Save for the application of liniment, defendant gave plaintiff very little treatment at all.

There is some sonflict in the evidence as to what steps defendant took to diagnose plaintiff's injury. He did take X-ray pictures but these were not so taken as to show any fracture. Pictures taken later by others did show fracture.

The treatment accorded by plaintiff was admittedly improper for either a fracture or a severe sprain. The proper treatment was in some respects the same for both. Rest is demanded in both cases.

The court submitted the case to the jury and a verdict was returned for plaintiff. The court granted a new trial on account of errors occurring at the trial. Both parties appeal.

1. On defendant's appeal it is urged that there was no evidence of negligence in diagnosis or treatment and that the court should have directed a verdict for defendant. With this we do not agree. A physician does not insure either correct diagnosis or correct treatment, but he is required to possess the skill and learning which is possessed by the average member of his school of medical profession in good standing in his locality, and to apply that skill and learning with ordinary and reasonable care. If he does this, he is not ordinarily liable for damages consequent upon an honest mistake, or an error of judgment, in making a diagnosis, or in prescribing treatment, where there is reasonable doubt, as to the nature of the physical condition involved, or as to what should have been done in accordance with recognized authority and good current practice. Staloch v. Holm, 100 Minn. 276, 281, 111 N. W. 264,9 L. R. A. (N. S.) 712. But he cannot shield himself from liability by merely saying, that, though he erred, he used his best judgment. Such a rule would dispense with the use of both skill and care. He must exercise reasonable skill and care and the question whether he has done so is usually a question of fact. Sawyer v. Berthold, 116 Minn. 441, 134 N. W. 120;McGray v. Cobb, 130 Minn. 434, 152 N. W. 262,153 N. W. 736;Viita v. Fleming, 132 Minn. 128, 132, 155 N. W. 1077, L. R. A. 1916D, 644, Ann. Cas. 1917E, 678;Moehlenbrock v. Parke Davis & Co., 176 N. W. 169.

[2] 2. Defendant contends that a jury could not find negligence in either diagnosis or treatment without expert testimony charging defendant with negligence. With this we do not agree. There are some facts pertinent to a case in malpractice which may be proven only by the testimony of experts. For example, a nonprofessional observer may not ordinarily diagnose disease (Martin v. Courtney, 87 Minn. 197, 203, 91 N. W. 487), the standards of practice in different schools of medicine must be established by the testimony of experts of those schools (Martin v. Courtney, 75 Minn. 255, 77 N. W. 813), and generally with respect to matters of science or...