Ness v. Yeomans
| Decision Date | 02 January 1931 |
| Docket Number | 5841 |
| Citation | 234 N.W. 75,60 N.D. 368 |
| Court | North Dakota Supreme Court |
Rehearing Denied January 21, 1931.
Appeal from the District Court of Ward County, Moellring J.
Reversed.
George A. McGee and I. H. Breaw, for appellant.
" . . the form of the question is not paramount, and the test of whether it is leading is the suggestiveness of the substance." Wharton, Ev. para. 499; Greenl. Ev. para. 434.
"Ordinarily in malpractice actions the plaintiff is required to prove by expert testimony the standard of skill possessed by physicians and surgeons in the same general line of practice as the defendant, and practicing in similar localities." Whitson v. Hillis, 55 N.W. 597.
"In malpractice, where the defendant's acts or omissions may be consistent or inconsistent with the proper practice, plaintiff has the burden of proof to establish by competent expert testimony the negligence alleged." Gallagher v. Kermott, 56 N.D. 176, 216 N.W. 569. See also McGraw v. Kerr (Colo.) 128 P. 870; Conley v. Portland Gaslight Co. (Me.) 58 A. 61; Turner v. Haar (Mo.) 21 S.W. 732; Granger v. Still, 187 Mo. 197, 70 L.R.A. 49; Baker v. Langan (Iowa) 145 N.W. 513; Force v. Gregory, 22 L.R.A. 343.
"Negligence cannot be found without expert evidence showing improper treatment or failure to treat." Farrell v. Haynes (Mich.) 122 N.W. 197; Marchand v. Belland, 147 N.W. 1033; Booth v. Andres (Neb.) 137 N.W. 884.
"A physician's negligence cannot be based on the testimony of lay witnesses." Fibus v. Maker, 181 Ill.App. 274; Sawyer v. Berthold, 134 N.W. 120.
"Juries are not allowed to determine for themselves by inspection, whether a physician's course of treatment has been proper or improper." Carstons v. Hanselman, 61 Mich. 426.
"Matters of medical science and practice are for experts only, and particularly those experts qualified and practicing that particular branch of the profession and governed by the rules of their particular school." 11 R.C.L. 609; 22
"It is the duty of the court to instruct the jury upon points material to the decision of the case, whether requested to do so or not, upon which there is evidence, and to charge correctly and fully." Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1.
"It is improper to fail to instruct the jury as to essentials and controlling questions in the controversy." Putnam v. Prouty, 140 N.W. 99.
"It is error to instruct on matters not within the issues." Albertson v. Lewis, 109 N.W. 705.
A physician and surgeon is not liable for injurious consequences to a patient if he exercises the required degree of skill and care. 48 C.J. 1123; Gallagher v. Kermott, 56 N.D. 176, 216 N.W. 569.
The doctrine of res ipsa loquitur has no application in malpractice cases, and an unfortunate or bad result does not supply proof of negligence. Gallagher v. Kermott, 55 N.D. 212.
John J. Garrity, E. R. Sinkler and G. Brekke, for respondent.
"Where experts testified the jury must pass upon their credibility and the weight of their testimony just as in the case of nonexpert witnesses." Axford v. Gaines, 50 N.D. 341, 195 N.W. 555. See also Moore v. Chicago, R.I. & P.R. Co. 151 Iowa 360, 131 N.W. 30.
". . . expert testimony though uncontradicted is not necessarily conclusive on the court or jury." State ex rel. Craig v. Workmen's Comp. Bureau, 53 N.D. 641, 207 N.W. 555.
"In determining the value of the plaintiff's services the jury are not bound by the testimony of expert witness. . . ." Head v. Hargrave, 105 U.S. 45.
"Generally speaking, expert testimony should be subject to the same tests that are ordinarily applied to the evidence of other witnesses, and to the court's instruction that the jury must find the facts upon their own sound judgment." Hedgpeth v. Coleman, 24 A.L.R. 232.
Baxter v. Railway Co. (Wis.) 80 N.W. 652.
"The jury must be presumed to have some knowledge concerning matters upon which physicians may have superior knowledge." Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480.
"It is a general principle of interpretation that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius." 25 R.C.L. 981.
"It is well settled that an exception in a statute amounts to an affirmation of the application of its provisions to all other cases not excepted and excludes all other exceptions." 25 R.C.L. 983.
"No standard exists by which to determine the qualifications of an expert witness." Ives v. Leonard (Mich.) 15 N.W. 463.
". . . the trial court must be left to determine, absolutely and without review, the fact of possession of the required qualification by a particular witness." 1 Wigmore, Ev. 674.
The defendant, a physician and surgeon, is charged with malpractice arising from the setting and treatment of a broken arm. The jury found for the plaintiff and, the court having denied a motion for judgment notwithstanding the verdict or for a new trial, the defendant appeals.
There are 87 assignments of errors, 66 of which deal with rulings on the admission of testimony, 17 with reference to the charge given to the jury and the remainder with rulings on the motion for a new trial, etc. In addition there is a specific allegation that the evidence is insufficient to sustain the verdict.
On the 17th of November, 1929, the plaintiff suffered a fracture of the ulna of the right arm at a point about one third of the distance from the wrist to the elbow. Two days thereafter, while he was in the hospital in Minot, the defendant was called to treat him, and set the bone giving some subsequent treatment. Plaintiff's claim is the bone was not properly set and that the proper subsequent treatment was not given. It is the claim of the defendant that under all of the circumstances of the case the union of the bone is a good union, and that if the plaintiff suffered from stiffness of the muscles and tendons it was because of his failure to follow instructions given him by the defendant and his failure to come for treatment.
Many of the objections made by the defendant during the introduction of testimony center around the testimony given by one L. M. Ellithorpe. The plaintiff, in order to prove his case introduced certain X-ray pictures, some of which were taken by this witness.
As foundation for the introduction of these pictures the witness testified that he was a duly and regularly licensed chiropractic under the laws of this state, with several years' practice and with six years' experience in the making of X-ray pictures. He showed that he had made a thorough study of human anatomy for about two years while at school, and that this was part of his training; that he had taken several hundred of these pictures and knew the contour, position and action of the bones in the human body. He showed the position in which the arm was placed at the time of the taking of the X-ray, and stated the picture identified was a true and correct picture of the arm at the time the picture was taken. He was then permitted to testify as to what the picture showed -- the break in the bone, its position and the nature of the union. To all of this the defendant interposed objections, the theory being that because the witness was a chiropractor, pursuing a system of treatment for human ills different from that pursued by the defendant, he was not competent to give expert testimony.
There was no error in permitting the witness to testify as to the taking of the X-ray photographs and what these showed. The fact that he was a chiropractic was a mere incident except so far as it showed his knowledge and study of human anatomy. The names, number and position of the bones in the human body are the same, whether one is a regular physician, a chiropractic or a laic. It is not the school which he follows; but his knowledge, experience and special training which qualifies the witness to testify as an expert in such cases. A chiropractor may testify as to matters in which he is qualified to speak so long as he is not attempting to testify in regard to a school of treatment separate and distinct from his. He could not testify as to the methods and practices of this other school without showing his qualifications therefor. He was not so testifying. In the matter before the court it was immaterial that he was a chiropractor. If he had studied human anatomy so as to acquire special knowledge; if he knew how to take X-ray photographs so as to give correct representations; if he knew how to read and interpret them then he was qualified to speak. The question of the qualification of the witness is primarily one for the trial court. A chiropractor may testify and interpret an X-ray picture upon showing practice therein and professional study. See Ladlie v. American Glycerine Co. 115 Kan. 507, 223 P. 272, 273. The weight given his testimony is for the jury. There was no error in permitting his testimony on such subjects in this case.
Owing to the quality of the evidence introduced, as shown by the record, it is not necessary for us to pass upon other assignments of error in the introduction of testimony nor the allegations of error with reference to the charge given by the court or failure to charge.
According to the...
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