Mehigan v. Sheehan.

• Decision Date: 04 March 1947
• Docket Number: No. 3637.,3637.
• Citation: 51 A.2d 632
• Parties: MEHIGAN v. SHEEHAN.
• Court: New Hampshire Supreme Court

51 A.2d 632

MEHIGAN

v.SHEEHAN.

No. 3637.

Supreme Court of New Hampshire.

March 4, 1947.

Exceptions from Superior Court, Hillsborough County; Tobin, Judge.

Action on the case for damages for alleged negligence of physician in claiming to attend and treat a patient by Loretta Mehigan against George T. Sheehan. The defendant's motion for nonsuit was granted, and the plaintiff brings exceptions.

New trial ordered.

Case, for negligence of a physician in failing to attend and treat a patient. January 15, 1945, the plaintiff learned that she was pregnant. The relationship of patient and physician was established between the parties, and the defendant, who lived about two hundred and fifty yards from the home of the Mehigans, assumed to give her reasonably necessary attention and treatment through the confinement. The child was expected July 19th. Monday, April 9th, the plaintiff commenced to flow. On the doctor's advice she remained in bed Tuesday and Wednesday. On Friday the flowing had practically stopped and after telephoning the defendant the plaintiff called at his office. She rested at home and felt well. About four o'clock Sunday morning, she awoke in pain. Without knowing their nature she was having labor pains, and the child was born between twelve and one o'clock. According to the plaintiff's evidence, Mr. Mehigan telephoned the doctor about 9 a. m. to come and not until a fourth call informing him that the miscarriage had taken or was taking place on the toilet did the doctor arrive. Other facts appear in the opinion. No claim is made for the death of the child.

Trial by jury. At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was granted and the exception of the plaintiff to the order noted. A bill of exceptions was allowed by Tobin, J. H. Thornton Lorimer and Francis E. Perkins, both of Concord (H. Thornton Lorimer, of Concord, orally), for plaintiff.

Sulloway, Piper, Jones, Hollis & Godfrey, of Concord (Jonathan Piper, of Concord, orally), for defendant.

JOHNSTON, Justice.

When the defendant agreed to the relationship of physician and patient, he became obligated to use reasonable care in attending and treating the plaintiff. ‘The situation is similar to that where one undertakes to act as a physician. He is answerable for failure to exercise the care and skill of one who is what the defendant has assumed to be. Burnham v. Stillings, 76 N.H. 122, 79 A. 987. It is not a matter of contract, for the obligation to use such care and skill as the undertaking reasonably calls for is imposed because of a privity of duty as distinguished from that of contract. Pittsfield Cottonwear Mfg. Co. v. Pittsfield Shoe Co., 71 N.H. 522, 53 A. 807, 60 L.R.A. 116; Edwards v. Lamb, 69 N.H. 599, 45 A. 480, 50 L.R.A. 160.’ Jackson v. Public Service Co., of New Hampshire, 86 N.H. 81, 82, 83, 163 A. 504, 505. Liability might be found if a physician or a surgeon ‘had acted from negligence and carelessness, contrary to what must have been his better knowledge and judgment, if he had given proper attention to the case.’ Leighton v. Sargent, 27 N.H. 460, 475, 59 Am.Dec. 388. No claim is made that the defendant did not have the knowledge, training, skill and other qualifications of the ordinary practitioner of his profession in the same place or in similar localities. April v. Perone, 88 N.H. 309, 188 A. 457; Michael v. Roberts, 91 N.H. 499, 23 A.2d 361.

The rule with regard to the need of expert testimony in an action for malpractice has been stated as follows: ‘* * * expert testimony is not necessary for the proof of negligence in nontechnical matters or those of which an ordinary person may be expected to have knowledge, * * *.’ 41 Am.Jur. 240 citing Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425 and Russell v. Newman, 116 Kan. 268, 226 P. 752. In the present case the issues raised by the plaintiff are within the intelligent comprehension of a jury. They include whether or not the defendant forgot to treat for the breasts after the miscarriage, whether two alleged telephone calls were made on Sunday morning and whose fault it was, if such calls were put through, that the plaintiff's need of medical attention was not made known to the defendant. The defendant admitted concerning the duty of attending the plaintiff as follows:

‘Q. Now, these telephone calls on Sunday, Doctor. If you had on Sunday morning received a telephone call around nine o'clock and another around ten or ten-thirty from Mr. Mehigan, telling you that Mrs. Mehigan was suffering terribly, you would have gone right over, wouldn't you? A. Yes, sir.

‘Q. That would have been your duty, wouldn't it? A. Yes, sir.'

Whether plaintiff was suffering terribly or suffering sufficiently so that reasonable care entitled her to have the attendance and help of her physician can under the facts of this case be passed upon by the jury would the aid of experts. The calling and the need of physicians are matters of common experience. Unlike Michael v. Roberts, supra, no question is raised in this case of the standards of professional skill but simply of negligent failure to give such medical care as would have been exercised if it were not for the alleged negligence.

There is evidence from which a jury could find...