Kelly v. Hollingsworth
| Decision Date | 21 March 1921 |
| Docket Number | 4777. |
| Citation | 181 N.W. 959,44 S.D. 23 |
| Parties | KELLY v. HOLLINGSWORTH. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Bon-Homme County; R. B. Tripp, Judge.
Action by John Kelly, as administrator of the estate of Florence Kelly, deceased, against J. E. Hollingsworth. From judgment for plaintiff and from order denying motion for new trial defendant appeals. Judgment and order reversed.
F. B Morgan, of Wagner, and C. M. Stilwill, of Sioux City, Iowa for appellant.
G. M. Caster, of Lake Andes, and R. D. Walker, of Ft. Pierre, for respondent.
This action was brought against defendant, a physician and surgeon, to recover damages for alleged professional malpractice resulting in the death of a child. The action was brought on behalf of the parents of the child. It seems that this child, a little girl of some 18 months of age, attempted to eat some peanuts, shells and all. She choked and was thereafter unable to speak above a whisper. This condition continuing, her parents, who reside in the country, took the said child to defendant, who, after examination of the child and after being unable to locate and dislodge the foreign substance that was causing the condition the child was suffering from, advised the parents to take the child to a hospital in the neighboring town, because of the danger that might arise, if the child should suddenly be taken with a severe spell of choking, and should be, at such a time, distant from medical aid. The parents took the child to the hospital and, at the end of a period of some three days, defendant performed an operation upon said child-opening up the trachea and exploring same to try to locate and remove the foreign substance supposed to be lodged therein. The child died in about 24 hours. It is plaintiff's theory that the operation was unnecessary and unjustified; that defendant was negligent and careless in advising same; and that defendant so negligently, carelessly, and unskillfully performed the operation as to cause the death of such child. Verdict and judgment were for plaintiff, and from such judgment and an order denying a new trial this appeal was taken. Numerous assignments of error are presented, but those that we deem controlling pertain to a hypothetical question asked a medical expert, and to instructions given by the court.
As a part of plaintiff's original case he offered the testimony of a medical expert. A hypothetical question was propounded to this witness. The alleged facts set forth in this question were to form the basis for the answer sought, which was, among other things, as to whether witness was of the opinion that the operation performed by defendant was justified. This hypothetical question purported to contain a statement of all the facts established by the evidence, and which were known to defendant when he advised the operation. There was also included in such hypothetical question a statement of the fact that, upon the operation, no foreign substance was found in the trachea or windpipe. Defendant objects to the hypothetical question and among his objections was the following:
This exception was clearly well taken. A surgeon, in determining whether an operation is necessary, can only be guided by such information as he can gain without the operation. The question in this case was: If defendant sought for and procured all the information which proper practice and investigation would disclose, was he justified in determining that an operation was necessary? If a surgeon, under information so gained, was justified in operating, he cannot be holden merely because, upon the performance of the operation, it shall develop that he had erred in his conclusion as to the necessity thereof.
Nearly two years ago this court put into effect rules requiring that instructions be settled before they are given to the jury. The wisdom of these rules is sufficiently evidenced by the fact that this is the first appeal coming to this court where errors based on instructions given or refused have been assigned as grounds for reversal, and where the instructions were settled under these rules. The record in this case furthermore demonstrates the wisdom of such rules, in that it shows how, under them, the trial court is aided in the preparation of proper instructions. The trial court erred in not amending certain proposed instructions in accordance with exceptions noted thereto by defendant; yet the record discloses that such court's attention was fairly and fully called to those matters wherein the instructions were materially erroneous, and it discloses that an opportunity was given the court to so amend the proposed instructions that they would have been beyond criticism.
Defendant sought an instruction, a part of which was to the effect that, where a surgeon possesses the requisite qualifications and applies his skill and judgment with ordinary care and diligence to the diagnosis and treatment of a patient, he is not liable for an honest mistake or for an error of judgment in making a diagnosis or in prescribing a mode of treatment, where there is ground for reasonable doubt as to the practice to be pursued. That this requested instruction correctly states the law cannot be disputed. Clark v. George (Minn.) 180 N.W. 1011. This instruction requested was refused. The court, however, announced that he would give instructions of which the following was a part:
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