Hunder v. Rindlaub
| Decision Date | 22 August 1931 |
| Docket Number | 5895 |
| Citation | 237 N.W. 915,61 N.D. 389 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Cass County Englert, J., defendants appeal.
Reversed and remanded for a new trial.
Richardson Thorpe & Wattam, Conmy, Young & Conmy and Charles J Vogel, for appellant.
"When a case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must depend on expert evidence." Ewing v. Goode, 78 F. 442. See also McDonnell v. Monteith, 59 N.D. 750, 231 N.W. 854; Staloch v. Holm, 9 L.R.A.(N.S.) 712; Young v Fullerton, reported in McClelland on Civil Malpractice, p. 253; Sullivan v. McGraw, 118 Mich. 39, 76 N.W. 149; Gillette v. Tucker, 67 Ohio St. 106, 93 Am. St. Rep. 639, 65 N.E. 865.
An expert cannot testify to the conclusion that he was negligent, but he can testify as to what processes should be gone through when a doctor is diagnosing a case. Gallagher v. Kermott, 56 N.D. 176, 216 N.W. 569; Hager v. Clark, 35 N.D. 591, 161 N.W. 280; Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480; Beardsley v. Ewing, 40 N.D. 373, 168 N.W. 791; Schoening v. Smith, 59 N.D. 592, 231 N.W. 279.
"A physician is not liable for malpractice merely because of a bad result and is not an insurer of a correct diagnosis or correct treatment." McDonnell v. Monteith, 59 N.D. 750, 231 N.W. 854; Stoskoff v. Wicklund, 49 N.D. 708, 193 N.W. 312; Ramberg v. Morgan (Iowa) 218 N.W. 492; Holton v. Burton (Wis.) 222 N.W. 225; Dolan v. O'Rourke, 56 N.D. 416, 217 N.W. 666; Schmidt v. Stone, 50 N.D. 91, 194 N.W. 917; Dean v. Seaman (S.D.) 176 N.W. 649; Feltman v. Dunn (S.D.) 217 N.W. 198; Clark v. George (Minn.) 180 N.W. 1011; Miller v. Toles (Mich.) 150 N.W. 118.
A physician is not a warrantor of cures. The maxim "res ipsa loquitur" is not applicable to a case like this. Ewing v. Goode, 78 F. 442.
In almost every case requiring medical expert evidence witnesses can be found who will give opinions directly opposed to each other. Martin v. Courtney (Minn.) 77 N.W. 813; Holton v. Burton (Wis.) 222 N.W. 225; McGuire v. Rix (Neb.) 225 N.W. 121; De Bruine v. Voskuil (Wis.) 169 N.W. 288; Wood v. Vroman (Mich.) 184 N.W. 520; Dunn v. Beck (Mont.) 260 P. 1047.
But unless improper treatment follows, a wrong diagnosis gives no right of action. Dishman v. Asso. (Wash.) 164 P. 943; Toner v. Aiken (Iowa) 101 N.W. 769; Trask v. Dunnigan (Mo.) 299 S.W. 116; Brydges v. Cunningham (Wash.) 124 P. 131.
The standard of careful conduct is not the opinion of the individual, but is the conduct of an ordinary prudent man under the circumstances. Vaughn v. Menlove, 3 Bing. N.C. 468; 22 Am. & Eng. Enc. Law, 2d ed. 804, note 5; Whitesell v. Hill, 37 L.R.A. 834, note; MacKenzie v. Carman, 103 A.D. 246, 92 N.Y.S. 1063.
"A medical man is not bound to form a right judgment (as to sanity) so as to be liable to an action if he does not." Hall v. Semple, 3 Fost. & F. 337; Williams v. Le Bar, 141 Pa. 149, 21 A. 525.
"A man who is called upon to exercise professional judgment is bound to the exercise of reasonable skill and learning and diligence." Dishman v. Asso. (Wash.) 164 P. 950.
If a verdict is flagrantly contrary to the evidence and the court is convinced that an injustice has been done, it should be set aside. 2 R.C.L. 197.
Scintilla rule does not apply in this state. Fuller v. Northern P. Elevator Co. 2 N.D. 220; Dinnie v. Johnson, 8 N.D. 153, 77 N.W. 612.
Burden of proof is upon plaintiff to show negligence. Mistake or bad results not sufficient. Beardsley v. Ewing, 40 N.D. 373; 21 R.C.L. 46; Cayton v. English, 23 F.2d 746.
"In the absence of evidence to the contrary, the law presumes the exercise of a reasonable degree of care and skill by a physician and surgeon . . . and that defendant is innocent of wrong." Schmidt v. Stone, 50 N.D. 91, 194 N.W. 917; Houghton v. Dickson (Cal.) 155 P. 129; Wallace v. Udelson, 244 Ill.App. 320.
Plaintiff must show affirmatively not only negligence but that the negligence was the proximate cause of the injury, and this proximate cause must be shown by expert testimony. Neifert v. Hasley, 112 N.W. 705.
Improper practice and lack of skill must be shown by expert testimony. Hanson v. Thelan, 42 N.D. 618; Rayburn v. Day, 268 P. 1002; Zoterell v. Repp, 153 N.W. 692; Nelson v. Sandell (Iowa) 46 A.L.R. 1447.
There is no presumption of negligence because a physician made a mistake. Williams v. Le Bar, 21 A. 525.
Mistaken diagnosis or judgment and treatment following same mistake is not negligence. McDaniels v. Moth (Iowa) 230 N.W. 311.
Where there are several different methods, or when the practice to be chosen is a question of judgment there is no negligence in choosing either, and the physician does not choose one of several methods at his peril. Cozine v. Moore (Iowa) 141 N.W. 424; 48 C.J. 1124, 1125, 1127.
Where evidence is as consistent with absence as with existence of negligence, case should not be left to jury. Swanson v. Wasson, 262 P. 146; Pelky v. Palmer (Mich.) 67 N.W. 561; 30 Cyc. 1588; Farrell v. Haze, 122 N.W. 197.
Where immediate facts necessary to sustain a verdict rest upon conjecture or suspicion, a verdict is not sustained. Phebus v. Mather, 181 Ill.App. 274; Fenney v. Spalding (Me.) 35 A. 1027; Bigney v. Fisher (R.I.) 59 A. 72.
Where a question is so framed as to require a single answer to several distinct propositions, it is improper. 22 C.J. 709; Kahn v. Co. (Cal.) 73 P. 164.
When the question calls for mere conjecture, it is improper. 22 C.J. 709.
Conflicting facts should not be embodied in a single question. 22 C.J. 712.
If the plaintiff desires to make his case by expert evidence from the defendant himself, he must call him as his own witness, but is not permitted to do so under the provisions of Session Laws of 1909. Osborne v. Carey (Idaho) 132 P. 967; Guse v. Co. (Wis.) 139 N.W. 195.
If causes other than the negligence of the defendant might have produced the injury, the plaintiff is bound to exclude the operation of such causes by a fair preponderance of the evidence. Wadsworth v. Boston Elev. R. Co. 182 Mass. 572, 66 N.E. 421; Bigwood v. Boston & N. St. R. Co. 209 Mass. 345, 35 L.R.A.(N.S.) 113, 95 N.E. 751; Morris v. Weene, 54 N.E. 860; Hammer v. Klegger (S.D.) 210 N.W. 667.
Where the data and evidence upon which the opinion is based, is speculative, conjectural or unstable, it cannot be used as the basis or hypothesis of an expert opinion. Roger, Expert Testimony, 2d ed. 33, § 13.
An opinion cannot be given on hearsay testimony. Re Barber (Conn.) 22 L.R.A. 90.
It is not proper to predicate an expert opinion upon another. They must be based either upon the facts, or facts assumed to be true stated in the hypothetical question. Hays v. Hogan, L.R.A.1918C, 725.
An expert cannot give an opinion, and then in answer to another question base the second opinion on his own first opinion. McAnany v. Henrici (Mo.) 141 S.W. 633.
The facts assumed in questions must be stated as facts. 11 R.C.L. 581.
One expert cannot predicate his opinion on the testimony of another expert. 11 R.C.L. 582; Roger, Expert Testimony, p. 74, § 30; 22 C.J. 709.
The evidence given by one expert should not be embraced in the hypothetical question submitted to another. 22 C.J. 712.
Hypothetical questions must be based upon facts as to which there is such evidence that a jury might reasonably find that they are established. 22 C.J. 714.
Facts inadmissible of themselves cannot be proved as a basis for the opinion of an expert. 22 C.J. 716.
A physician cannot testify as to his opinion based upon a history of the case given to him out of the court room, because such statement would be based upon statements not made under oath. Davis v. State, 130 S.W. 547.
It may be shown that the inferences are erroneous as where another sufficient cause will explain the phenomena. 22 C.J. 737; Soules v. Co. 34 N.D. 7, 157 N.W. 823; Hintz v. Wagner, 25 N.D. 110, 140 N.W. 729.
Shure & Murphy, Murphy & Johanson and Roger L. Dill, for respondent.
The testimony of the mother was competent as to plaintiff's condition so far as being able to see anything after the injury. Halvorson v. Zimmerman, 60 N.D. 113, 232 N.W. 754; Bennett v. R.R. Co. 2 N.D. 112. See also 49 N.W. 408; 13 N.W. 559; 102 N.W. 165.
There is no fixed age under which infants are incompetent to testify, but that intelligence is the proper test and that the question of competency rests in the discretion of the trial court. 40 Cyc. 2200; 3 L.R.A.(N.S.) 523.
The competency of the witness to testify relates to the time of testifying and not to the time of the occurrence to which the testimony relates. Foster v. Honan, 53 N.E. 667; Wheeler v. United States, 159 U.S. 523.
The examination of a child is usually made by the judge; though either counsel has the right to supplement it by questions tending to bring out whatever may be in favor of his contentions. 3 Wigmore, Ev. § 1820.
It is the duty of the court to examine a child, if the question of competency arises, and to determine, in the exercise of sound discretion, whether the witness has the requisite understanding. But the court may also allow the attorneys to make inquiry. 3 Jones, Ev. § 739.
To constitute a bar to the suit the negligence of the parties must have been an active and effective contributory cause of the injury. 21 R.C.L. 402; Sauers v. Smits, 17 L.R.A.(N.S.) 1242, 95 P. 1097.
Where uncertainty as to the existence of negligence arises from a conflict in the testimony, or because the facts being undisputed, fairminded...
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