Merrill v. Odiorne

• Decision Date: 12 July 1915
• Citation: 113 Me. 424,94 A. 753
• Parties: MERRILL v. ODIORNE.
• Court: Maine Supreme Court

94 A. 753

113 Me. 424

MERRILL

v. ODIORNE.

Supreme Judicial Court of Maine.

July 12, 1915.

On Motion from Supreme Judicial Court, Kennebec County, at Law.

Action by O. P. Merrill against Joseph E. Odiorne. There was a verdict for plaintiff, and defendant moves for new trial. New trial granted.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and PHILBROOK, JJ.

G. W. Heselton, E. H. Maxey, and E. L. Goodspeed, all of Gardiner, for plaintiff. C. A. Knight, of Gardiner, and A. S. Littlefield, of Rockland, for defendant.

PHILBROOK, J. This is an action against a surgeon to recover damages resulting from alleged negligence on his part in the reduction and treatment of a fractured limb. The verdict was in favor of the plaintiff, and the defendant asks that the verdict be set aside and a new trial granted.

"The measure of a physician's legal responsibility has been stated many times by this court. He contracts with his patient that he has the ordinary skill of members of his profession in like situation, that he will exercise ordinary or reasonable care and diligence in his treatment of the case, and that he will use his best judgment in the application of his skill to the case. * * * The physician is not an insurer. He does not warrant favorable results. If he possesses ordinary skill, uses ordinary care, and applies his best judgment, he is not liable even for mistakes in judgment. Medical science is not yet, and probably never can be, in many respects, an exact, certain science." Coombs v. King, 107 Me. 376, 78 Atl. 468, Ann. Cas. 1912C, 1121.

But in cases of this nature a duty devolves upon the patient. In an extensive note to be found in the case of Gillette v. Tucker, 93 Am. St. Rep. at page 662, upon the authority of cases there cited, it is held that it is the duty of a patient to follow the reasonable instructions and submit to the reasonable treatment prescribed by his physician or surgeon. If he fails in his duty, and his negligence directly contributes to the injury, he cannot maintain an action for malpractice against his physician or surgeon, who is also negligent in treating the case.

In the absence of any exceptions to the instructions of the presiding justice, we must assume that these principles of law were correctly stated to the jury. It is the opinion of the court, however, upon a careful examination of the evidence, that the jury did not give due consideration to that part of the testimony which related to the...