McAlinden v. St. Maries Hospital Ass'n

• Decision Date: 11 March 1916
• Citation: 156 P. 115,28 Idaho 657
• Parties: JOSEPH MCALINDEN, Respondent, v. ST. MARIES HOSPITAL ASSOCIATION, Appellant
• Court: Idaho Supreme Court

156 P. 115

28 Idaho 657

JOSEPH MCALINDEN, Respondent, v. ST. MARIES HOSPITAL ASSOCIATION, Appellant

Supreme Court of Idaho

March 11, 1916

MOTION FOR NONSUIT-FOR DIRECTED VERDICT-FOR NEW TRIAL-SUFFICIENCY OF EVIDENCE-LIABILITY OF PHYSICIANS AND SURGEONS-DEGREE OF DILIGENCE REQUIRED-QUESTION OF NEGLIGENCE A QUESTION OF FACT-CONFLICT IN EXPERT EVIDENCE-HYPOTHETICAL QUESTIONS-INSTRUCTIONS-BASIS OF DAMAGES AWARDED-EXCESSIVE VERDICT-MODIFICATION OF.

1. The court should not take a case from the jury upon a motion for a nonsuit or upon a motion to direct the jury to return a verdict for defendant, unless it appears that the evidence in plaintiff's behalf, upon the most favorable construction that the jury would be at liberty to give, would not warrant a verdict for plaintiff.

2. The law requires a physician and surgeon to possess the skill and learning which is ordinarily possessed by the average member of such professions in good standing, and requires him to apply such skill and learning in a given case with ordinary and reasonable care.

3. Whether errors of judgment will or will not make a physician and surgeon liable for damages in a given case, depends not merely upon the circumstance that he may be ordinarily skilful as such physician and surgeon, but also upon the fact of whether he has exercised in the treatment of such case the degree of reasonable skill and diligence that is ordinarily exercised in his profession.

4. Whether a physician and surgeon in a given case possessed and exercised that degree of skill and learning possessed by the average member of the medical and surgical professions in good standing in the community, and used that reasonable care and diligence according to his best judgment in the treatment of an injured patient that the average member of such professions would have used, are questions of fact exclusively for the jury to determine. This rule is not changed by the fact that men learned in the sciences of medicine and surgery have given conflicting testimony touching the required and approved treatment of an injury.

5. Where the evidence is conflicting as to the facts on which the opinions of expert witnesses are based, and where the opinions of such witnesses, on a given state of facts in the case, materially differ, it is for the jury to determine, and their finding is conclusive.

6. In the case at bar, while it may be true that the jury were not in a position to say beyond the possibility of a doubt that any one single fact in evidence or the absence of any one condition established conclusively the negligence of appellant's physician and surgeon in placing the cast upon the injured limb of respondent at the time and in the manner in which it was done, and in his failure to split the cast and thus permit free and uninterrupted veinous circulation, yet if from all the testimony and circumstances of the case there is evidence sufficient to establish a prima facie case, the conclusion reached by the jury based upon the evidence will not be disturbed on appeal.

7. Held, that the court did not err in denying appellant's motion for a new trial; and that the evidence is sufficient to support the verdict of the jury and judgment of the court.

8. Held, that the court did not err in permitting, over the objection of appellant, the propounding of certain hypothetical questions and in permitting such questions to be answered.

9. Held, that the court correctly instructed the jury to the effect that in awarding plaintiff damages, if any were awarded, it would not be proper to allow him anything for the accident which he sustained, nor for the pain, suffering and anguish therefrom accruing to him; but that the award of damages must be confined solely to those which had accrued by reason of the negligence of defendant and its agents.

10. Held, that the verdict of the jury and judgment of the court awarding plaintiff the sum of $12,000 was excessive, in view of all the facts and circumstances in evidence, and that said verdict and judgment be reduced to $8,640; or that upon failure of plaintiff to accept such modified judgment, the judgment be reversed in toto and a new trial granted.

[As to degree of skill required of physicians and surgeons, see note in 93 Am.St. 657]

APPEAL from the District Court of the Eighth Judicial District, in and for Kootenai County. Hon. John M. Flynn, Judge.

Action to recover damages for malpractice. Judgment for plaintiff. Modified and Affirmed.

J. L McClear and Cullen Lee & Matthews, for Appellant.

The case should not be submitted to the jury where the evidence shows two or more causes, for one of which the defendant would not be liable. (Miller v. Northern P. R. Co., 24 Idaho 567, Ann. Cas. 1915C, 1214, 135 P. 845, 48 L. R. A N. S., 700; Cook v. Minneapolis etc. Ry. Co., 98 Wis. 624, 67 Am. St. 830, 74 N.W. 561, 40 L. R. A. 457; Adams v. Bunker Hill etc. Min. Co., 12 Idaho 637 643, 89 P. 624, 11 L. R. A., N. S., 844; Armstrong v Cosmopolis, 32 Wash. 110, 72 P. 1038; Knapp v. Northern P. R. Co., 56 Wash. 662, 106 P. 190; Pelky v. Palmer, 109 Mich. 561, 67 N.W. 561; Hughes v. Cincinnati etc. R. Co., 91 Ky. 526, 16 S.W. 275; Perkins v. Northern P. R. Co., 193 F. 219.)

A physician is not liable for damages consequent upon an honest mistake or an error of judgment in prescribing treatment or as to what should have been done in accordance with recognized authority and good current practice. (Staloch v. Holm, 100 Minn. 276, 111 N.W. 264, 9 L. R. A., N. S., 712.)

There is no evidence in the present record to show that Dr. Young failed to act according to his best judgment. (Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106, 41 L. R. A., N. S., 290; Pepke v. Grace Hospital, 130 Mich. 493, 90 N.W. 278.)

The physician is not bound to use any particular method. (Burnham v. Jackson, 1 Colo. App. 237, 28 P. 250.)

Even though there be a conflict in the evidence, if the verdict is not right it should be set aside. (Jones v. Campbell, 11 Idaho 752, 84 P. 510; Bernier v. Anderson, 8 Idaho 675, 70 P. 1027.)

Evidence insufficient to support the verdict. New trial granted the defendant. (Osborn v. Carey, 24 Idaho 158, 132 P. 967; Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Dougherty v. Soll, 70 Wash. 407, 126 P. 924; Hill v. Shaw, 69 Ore. 460, 137 P. 229; Martin v. Courtney, 75 Minn. 255, 77 N.W. 813; MacKenzie v. Carman, 103 A.D. 246, 92 N.Y.S. 1063; Wood v. Wyeth, 106 A.D. 21, 94 N.Y.S. 360; English v. Free, 205 Pa. 624, 55 A. 777; Langford v. Jones, 18 Ore. 307, 22 P. 1064.)

Verdict is excessive and the result of passion and prejudice. (Barter v. Stewart Min. Co., 24 Idaho 540, 135 P. 68; Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, 47 L. R. A., N. S., 634; Denbeigh v. Oregon-Washington Ry. & Nav. Co., 23 Idaho 663, 132 P. 112; Wood v. Louisville etc. R. Co., 88 F. 44; Bell v. Globe Lumber Co., 107 La. 725, 31 So. 994; Wimber v. Iowa Central Ry. Co., 114 Iowa 551, 87 N.W. 505; Kroener v. Chicago M. & St. P. Ry. Co., 88 Iowa 16, 55 N.W. 28; Beaton v. City of St. Maries, 27 Idaho 638, 151 P. 996; Mosso v. E. H. Stanton Co., 85 Wash. 499, 148 P. 594.)

Reed & Boughton and Lester P. Edge, for Respondent.

A physician or surgeon undertaking the treatment of a patient is not required to exercise the highest degree of skill possible, but must use reasonable care and diligence in the exercise of his skill and the application of his learning, and act according to his best judgment. (30 Cyc. 1570, sec. B, note 19, and cases cited; 5 Thompson Negligence, sec. 6711; Cranford v. O'Shea, 75 Wash. 33, 134 P. 486.)

"Whether errors of judgment will or will not make a physician liable in a given case depends not merely upon the fact that he may be ordinarily skilful as such, but whether he has treated the case skilfully or has exercised in its treatment such reasonable skill and diligence as is ordinarily exercised in his profession." (30 Cyc. 1578, note 92, and cases cited; West v. Martin, 31 Mo. 375, 80 Am. Dec. 107; Jackson v. Burnham, 20 Colo. 532, 39 P. 577; Bonnet v. Foote, 47 Colo. 282, 107 P. 252, 28 L. R. A., N. S., 136.)

The law contemplates a judgment founded on skill and knowledge in these sciences. The treatment must be recognized and approved. (Sawdey v. Spokane Falls & N. R. Co., 30 Wash. 349, 94 Am. St. 880, 70 P. 972.)

"A wrong diagnosis of a case, resulting from a want of skill or care on the part of the physician, and followed by improper treatment, to the injury of the patient, renders the physician liable in damages." (30 Cyc. 1575; Doyle v. Owen, 150 Ill.App. 415.)

"It is for the jury to say upon all the evidence what treatment amounts to negligence under the rule of skill required." (Hewitt v. Eisenbart, 36 Neb. 794, 55 N.W. 252; Olmsted v. Gere, 100 Pa. 127; Harriott v. Plimpton, 166 Mass. 585, 44 N.E. 992; Vanhooser v. Berghoff, 90 Mo. 487, 3 S.W. 72; Carpenter v. Blake, 60 Barb. (N. Y.) 488; Rowe v. Lent, 62 Hun, 621, 17 N.Y.S. 131, 42 N.Y.S. 483; Link v. Sheldon, 64 Hun, 632, 18 N.Y.S. 815, 45 N.Y.S. 165.)

"Where the evidence is conflicting as to the facts on which the opinions of expert witnesses are based, and where the opinions of such witnesses, on a given state of facts in the case, materially differ, it is for the jury to determine, and their finding is conclusive." (30 Cyc. 1588, note 86; Baily v. Kreutzmann, 141 Cal. 519, 75 P. 104; Moon v. McRae, 111 Ga. 206, 36 S.E. 635; Bennison v. Walbank, 38 Minn. 313, 37 N.W. 447; Du Bois v. Decker, 130 N.Y. 325, 27 Am. St. 529, 29 N.E. 313, 14 L. R. A. 429; Wells v. World's Dispensary Medical Assn., 120 N.Y. 630, 24 N.E. 276; Carpenter v. Blake, 60 Barb. (N. Y.) 488.)

"Where the evidence tends to prove the cause of action alleged, and a prima facie case is made by such proof, the...