Jameson v. Weld

• Citation: 45 A. 299,93 Me. 345
• Parties: JAMESON v. WELD.
• Decision Date: 14 December 1899
• Court: Supreme Judicial Court of Maine (US)

45 A. 299

93 Me. 345

JAMESON

v. WELD.

Supreme Judicial Court of Maine.

Dec. 14, 1899.

(Official.)

Exceptions from supreme judicial court Penobscot county.

Action by Gertrude E. Jameson against G. Gilmore Weld. Verdict for plaintiff. Defendant moves for a new trial, and excepts. Overruled.

This was an action on the case against the defendant, a physician and surgeon, for malpractice in treating the plaintiff for an injury to the elbow of the right arm. The plea was the general issue. The verdict was for the plaintiff for $500. Besides a general motion for a new trial, exception is taken by the defendant to the following extracts from the charge of the presiding justice:

(1) The presiding justice, after having called the attention of the Jury to the injury, and the treatment by the defendant in reducing the dislocation and fracture, if there was one, then said: "The next morning, if I remember correctly, he called the family physician, took off the bandages, or loosened the bandages, and, perhaps, loosened the splints,—I don't remember particularly about that; but, at any rate, he so far exposed the arm that the doctor who came in saw it, and you have heard what he said in regard to it. Then the splints and bandages were replaced, and the arm remained in that condition. That continued for a period of some two weeks, I think (I may be in error about the time; it is no matter, but for some little period of time;, when he says that he undid the bandages, and then began to flex the joint."

(2) The presiding justice, after remarking, in substance, that, at the end of the fourth week, the defendant discovered that the bones were again out of place,—that they bad been pushed by the end of the humerus,—said:

"Now, was he at fault in not discovering earlier whether they had been pushed by? That would depend very much when they were again dislocated. He did not discover it until the end of the fourth week. During that time he was flexing the joint, and he testifies that he came there every day. Is there any evidence to satisfy you, by a preponderance, that he was negligent in not securing the parts,—supporting the parts,—with his fingers or otherwise, so as not to have that result happen? Then, again, according to his statement, at the end of the fourth week he was met with the fact that the joint had again been dislocated. He says that be then at first, for a day or two, considered it, and then administered ether, and attempted to replace the bones of the joint; and he contends that this small bone here, which I shall call the 'crown,' must have broken, so as to permit, when the joint was flexed, of its slipping by, and that that was one of the reasons why the joint would not remain where he had placed it. * * * These are considerations wholly for you in determining what happened, in the light of all the testimony of the case."

(3) The presiding justice further charged the jury as follows: "Then, at the end of the fourth week, having discovered that the bones were again out of place, and having taken time to consider, the doctor tells you that he attempted, by administering ether, to reduce the dislocation, but was unable to do it, and that then he continued rubbing, pulling, massage treatment, using lubricating or pungent liniments upon the parts, hoping thereby to bring it back into place, or so nearly so as to be equivalent to that."

The defendant's exception to this clause is to the use of the word "pungent," which was noted before the jury retired.

(4) The presiding justice, in calling the attention of the jury to the surrendering of the case by the defendant to Dr. Rowe, at the end of the eleventh week, said:

"But, gentlemen, you must bear in mind that when Dr. Weld left the patient, and substituted Dr. Rowe, Dr. Rowe could not justify himself by following and acting simply upon the skill and knowledge which Dr. Weld had, because he, again, was required to exercise his best skill and judgment, and to act with absolute fidelity; and if he considered it was his duty, under all the circumstances, in order to benefit his patient, to give her the benefit of hospital treatment, it is hard for me to say his conduct can be censured for doing so. But it is said by the defendant that his motive was to involve Dr. Weld in the charge of malpractice; that he did this maliciously. Well, gentlemen, no matter what his motive was,—no matter if it was malicious,—if he acted prudently and wisely, as his judgment told him it was best for him to act, and best for his patient, he was justified in doing it; and whether he did it for one purpose or another, only bears upon the question as to how far he is a partisan, and how far he is prejudiced, and how far he would be led to misstate, to distort, or to color the facts of the case. You saw him, and you heard him testify, and he frankly, so far as I saw, told you what he did. There is much controversy about his motives. So far as anything that has been said would give you reason to discredit the truth of what he has said, that, gentlemen, is competent and proper for you to take into consideration."

(5) The presiding justice, in commenting upon the testimony of the experts, said:

"So, gentlemen, so far as their opinions go, you will take them and consider them for what they are worth. But, above all, in this case, take the testimony of the witnesses who were actors in it; take the testimony of the plaintiff, as she has described her condition, her treatment, her feelings, her talk; take the testimony of the doctor, as he has told you what he did, how he acted, how he felt, and what he hoped: and if, on the whole, the plaintiff has satisfied you, by a preponderance of evidence, she is suffering an injury from the doctor's want of the requisite skill,—that is, want of ordinary skill to treat her case.— which the law required him to have, or from the want of proper care, and for negligence after he undertook her treatment, or for the want of good faith in not giving her sufficient knowledge to give her an opportunity to change the treatment if she desired, then, gentlemen, for any of those things of which she satisfies you by a preponderance of the evidence, she is entitled to recover compensation; that is, an equivalent for the injury suffered at the hands of the defendant."

The defendant also took exceptions to the admission of evidence as follows:

Gertrude E. Jameson, the plaintiff, on direct examination, testified, in part, as follows: "Q. Now, after you got to the hospital, what took place there? (Objected to. Admitted. Defendant excepts.)

"A. The arm was examined by the doctors, and then through the X-ray instrument by the doctors.

"Q. Did the physicians present examine your arm through the X-ray instrument prior to treating it or giving you ether?

"A. Yes.

"Q. By the Court: Go on and tell what was done.

"A. They examined the arm, and then examined it through the X-ray instrument, and they consulted. * * *

"Q. Can you take your sleeve up, so that the jury can see your arm, please?

"(Objected to, upon the ground that the arm is not now in the position it was when the defendant left it. Objection overruled. Arm permitted to be exhibited. Defendant excepts. Arm exhibited to the jury.)"

Dr. W. L. Hunt, called for the plaintiff, on direct examination, testified, in part, as follows:

"Q. I ask you if, looking through the fleuroscope, you saw those bones the same as they are represented on that photograph (Exhibit No. 1)?

"A. Yes, sir.

"(Said photograph [Exhibit No. 1] offered in evidence. Objected to.)

"Q. Was the instrument properly adjusted to take that photograph of her arm? (Objected to.)

"Q. How did you and the artist arrange the instrument?

"The Court: So as to produce what effect? I suggest it; I don't put it in.

"A. So as to take the arm from above downwards. The plates were put under the arm, in this way (illustrating). The X ray was placed above the arm. The rays went up and down, with the arm at the level of the shoulder, practically.

"Q. What was the result produced?

"A. We got a picture of the shadow of the entire portion of the bones.

"Q. Whether or not that was a natural picture of them?

"A. It was.

"Q. And is that photograph a natural picture of them?

"A. It is.

"(Said photograph [Exhibit No. 1] offered in evidence by counsel for plaintiff. Admitted. Defendant excepts.) * * *

"Q. Does that (Exhibit No. 1) show any fracture, doctor, whatever? (Objected to. Admitted. Defendant excepts.)

"A. No. * * *"

Dr. Arthur W. Rowe, called for the plaintiff, on direct examination, testified, in part, as follows:

"Q. You may state to the jury what diagnosis you made, and what you found.

"A. Well, I found, to my satisfaction, a backward dislocation of both bones of the joint, the radius and ulna. The means that I used were measuring from the olecranon process, the one here (indicating), which always has the same relation with the elbow in all positions of the arm, or nearly so. No matter how high or how low the shoulder is, and I found, measuring down the condyles on either side, that the distance was exactly the same or practically the same, as it was on the well arm, when they were placed in the same position. Then I measured from the same place to the point of the olecranon process, the tip of the elbow, and I found that about an inch and a quarter shorter than it was on the other side,—the other arm. Then I noted the relations of the point of the elbow with the two condyles,—the internal and the external con dyle,—and I found that, instead of being on a line with the tip of the olecranon, it come by the head of the olecranon process with a line drawn to the other. I further noted that the relation of the two condyles were the same as they were in the other arm, but there was no separation of the condyles, and that they were in the same relation, so far as measuring from the olecranon down. They were not lifted up or drawn down. The line...