Jackson v. Burnham

• Decision Date: 08 February 1895
• Citation: 39 P. 577,20 Colo. 532
• Parties: JACKSON v. BURNHAM. [1]
• Court: Colorado Supreme Court

39 P. 577

20 Colo. 532

JACKSON v. BURNHAM. ^[1]

Supreme Court of Colorado

February 8, 1895

Appeal from court of appeals.

Action by Jesse R. Jackson against N. G. Burnham. From a reversal by the court of appeals (28 P. 250) of a judgment of the district court for plaintiff, plaintiff appeals. Reversed.

This action was originally brought by Jesse R. Jackson, in the district court of Arapahoe county, against N. G. Burnham, to recover damages for malpractice. The complaint avers, in substance, that the defendant was a physician, engaged in the practice of his profession at the city of Denver; that plaintiff employed him to treat him for a malady from which he then suffered; that defendant entered upon such employment, and undertook, as a physician and surgeon, to administer medicines and cure him of said malady; 'that said defendant did not use reasonable, ordinary, due, and proper care or skill in his treatment of this plaintiff, and in endeavoring to cure this plaintiff of the said malady, in this: that, this plaintiff being afficted with phimosis, or an adherence of the prepuce or foreskin of the penis to the head thereof, and a consequent swelling thereof, the said defendant, instead of slitting up the prepuce or foreskin to the corona, etc., and thus freeing the glands of the penis and allowing circulation, and using other appliances and remedies, as is the reasonable, usual, and ordinary method adopted by the profession in such cases as this to prevent gangrene and sloughing, etc., wrongfully, negligently, and unskillfully applied and directed to be applied and kept on the penis of this plaintiff a flaxseed-meal poultice, which application, under the circumstances and in the condition of plaintiff's malady, aggravated said malady, and accelerated that condition of gangrene and sloughing which followed, and which might have been prevented by proper treatment; and that thus the said defendant wrongfully negligently, and unskillfully treated this plaintiff, and wrongfully, negligently, and unskillfully neglected to use the proper and ordinary means and care whereby this plaintiff's member aforesaid might have been saved and cured or relieved. Fourth. That by reason of the premises the wrongful, negligent, careless, and unskillful treatment of this plaintiff by the said defendant, and without any fault on the part of the plaintiff, gangrene and sloughing set in, and it became necessary to amputate, and the physicians attending this plaintiff did amputate, his penis wholly from the body; that this plaintiff has been injured in his health and constitution'; etc., and prays judgment in the sum of $20,000. Defendant, for answer, admits that he was a practicing physician, and was called to attend upon and administer medicine to plaintiff, but denies generally each and every other allegation contained in the complaint. The cause was tried to a jury; verdict and judgment rendered in favor of plaintiff for the sum of $5,000. From this judgment the defendant appealed to the court of appeals, which court reversed the judgment of the district court. From this judgment, plaintiff brings the case here on appeal.

A. H. Wyckoff and C. H. Brierly, for appellant.

Wolcott & Vaile and Henry F. May, for appellee.

GODDARD J. (after stating the facts).

The numerous errors assigned are directed to the admission of improper testimony, and to the giving and refusing of instructions. Those assigned upon the admission of testimony are principally based upon the court's permitting the expert witnesses on the part of plaintiff to answer the hypothetical question propounded--First, because it was not limited to undisputed facts; and, second, because it assumed facts that were not in evidence. This objection is not well taken upon either ground. A hypothetical question is framed upon the assumption that the evidence tends to prove certain facts, and, if within the probable or possible range of the evidence, it is unobjectionable. Gottlieb v. Hartman 3 Colo. 53; Cowley v. People, 83 N.Y. 464; Harnett v. Garvey, 66 N.Y. 641; Guiterman v. Steamship Co., 83 N.Y. 358. In the hypothetical question propounded in this case, counsel for plaintiff assumed the facts in accordance with his theory of what the evidence tended to prove. It was not essential that such facts should be undisputed. It was the province of the jury to determine whether they were actually proved. As was said by Folger, C.J., in the case of Cowley v. People, supra, in discussing this question: 'The claim is that a hypothetical question may not be put to an expert, unless it states the facts as they exist. It is manifest, if this is the rule, that in a trial where there is a dispute as to the facts, which can be settled only by the jury, there would be no room for a hypothetical question. The very meaning of the word is that it supposes, assumes, something for the time being. Each side, in an issue of fact, has its theory of what is the true state of the facts, and assumes that it can prove it to be so to the satisfaction of the jury, and, so assuming, shapes hypothetical questions to experts accordingly.' Without noticing in detail the testimony relied on as tending to establish the facts assumed in the question complained of, suffice it to say we find ample testimony in the record tending to support each and every phase of the question, and sufficient to justify the submission of the same to the jury.

The cause of action set forth in the complaint is that plaintiff was afflicted with phimosis; that the prepuce or foreskin adhered to the head of the penis, and caused a constriction or strangulation, that prevented circulation, and produced a swelling thereof; that, by reason of negligence and unskillful and improper treatment by defendant, gangrene set in and destroyed the organ. Upon this theory the case was tried by the plaintiff, and, in support thereof, he offered testimony to show the condition of the penis at the time defendant had charge of the case. The defendant, by his answer, in effect denied that phimosis was the malady from which plaintiff suffered; and, by his evidence, sought to show that the predisposing cause of the swollen condition of the organ was an ulceration of the urinal canal; and that for such a case he used the proper treatment. Therefore, it became the important, if not the controlling, question in the case, which of these respective theories was correct, since the propriety of defendant's treatment of plaintiff depends upon which was the correct diagnosis, and whether defendant exercised ordinary care and skill in examining the case, as well as in applying remedies. To determine this, resort must be had to the opinion of experts, based upon the ultimate facts as the jury may find them established by the weight of the evidence. Perceiving no error, therefore, in the admission of testimony, and it being the exclusive province of the jury to determine its probative force and the facts established thereby, we are precluded, on this review, from discussing the credibility of the witnesses or the weight of their testimony; nor are we at liberty to substitute our opinion for that of medical experts as to the proper mode of treatment, but must accept the verdict as conclusive of the correctness of plaintiff's theory that the malady from which he suffered was phimosis, and that the mode of treatment adopted by defendant was improper and injurious.

It only remains for us to determine whether the testimony was submitted to the jury under instructions which correctly define the law applicable to the case. We think that the instructions, taken as a whole, correctly define the nature and extent of the obligation that a physician or surgeon assumes when he accepts employment in his professional capacity. They certainly embody the law on the subject as uniformly laid down by text writers and announced in the adjudicated cases. They state, in substance, that, by holding himself out to the world as a physician and surgeon he impliedly contracts that he possesses the reasonable degree of skill, learning, and experience which good physicians and surgeons of ordinary ability and skill, practicing in similar localities, ordinarily possess; that, in judging of the proper degree of skill in any given case, regard is to be had to the advanced state of the profession at the time; that he will use his skill with ordinary care and diligence according to the circumstances of the case, and is liable only for ordinary neglect; that he does not undertake to warrant a cure, but only to exercise a reasonable amount of knowledge, skill, and care in diagnosing the case and in applying the remedies; and the jury are expressly told that, if they should find that defendant brought to the treatment of plaintiff such ordinary degree of knowledge and such skill and judgment, the plaintiff could not recover. We do not understand that counsel for defendant seriously controverts the correctness of the foregoing rules, but relies for a reversal of the judgment rather upon the refusal of the court to give certain specific instructions requested by him, and the giving of particular instructions asked by plaintiff, notably the refusal to give the following: 'If you believe that the defendant exercised his best judgment in diagnosing the plaintiff's case, and in applying remedies thereto, the plaintiff cannot recover, although you may believe that the defendant was mistaken as to the true character of the disease.' While it is true that physicians 'are not responsible for the errors of an enlightened judgment where good judgments may differ; * * * they will be charged with error, or should be, only where such errors could not have arisen except from want of reasonable skill and diligence' (Elw. Med....